Schedule 1 — Civil legal services

Legal Aid, Sentencing and Punishment of Offenders Bill – in the House of Commons at 4:59 pm on 31st October 2011.

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Votes in this debate

  • Division number 380
    A majority of MPs voted against explicitly including threats plus financial and emotional abuse in the definition of domestic abuse used in relation to the award of civil legal aid to domestic abuse victims.
  • Division number 381
  • Division number 382
    A majority of MPs voted against making legal aid available in clinical negligence cases.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice 4:59 pm, 31st October 2011

I beg to move amendment 10, page 99, line 11, leave out from ‘where’
to first ‘for’
in line 13 and insert ‘—

(a) the services are provided to the individual, or

(b) the individual has died and the services are provided—

(i) to the individual’s personal representative, or

(ii) ’.

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: Government amendment 11.

Amendment 91, page 103, line 3, after ‘family’, insert ‘or other intimate’.

Amendment 93, page 103, line 4, at end insert

‘or where an allegation is made that B has been abused by A or is at risk of being abused by A’.

Amendment 23, page 103, leave out lines 35 to 38 and insert—

‘“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.’.

Amendment 92, page 103, line 35, leave out ‘physical or mental abuse’ and insert

‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.

Amendment 74, page 104, line 23, at end insert—

‘(10) For the purposes of this paragraph, evidence that A has been abused by B or is at risk of being abused by B may consist of one or more of the following (without limitation)—

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders) including a non-molestation order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a Multi-Agency Risk Assessment Conference (as a high-risk victim of domestic violence) and a plan has been put in place to protect that victim from violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a medical report from a doctor at a UK hospital confirming that the applicant has injuries consistent with being a victim of domestic violence, such injuries not being limited to physical injuries;

(g) a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant had injuries consistent with those of a victim of domestic violence;

(h) an undertaking given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse;

(i) a letter from a social services department confirming its involvement in connection with domestic violence;

(j) a letter of support or a report from a domestic violence support organisation; or

(k) other well-founded documentary evidence of abuse (such as from a counsellor, midwife, school or witnesses).

(11) For the avoidance of doubt, no time limit shall operate in relation to any evidence supporting an application for civil legal services under paragraph 10.’.

Amendment 94, page 104, line 25, leave out ‘(“A”)’.

Amendment 95, page 104, line 27, leave out ‘other than A’.

Amendment 96, page 104, line 39, at end insert—

‘(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1).’.

Amendment 97, page 104, line 39, at end insert—

‘(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances).’.

Amendment 98, page 104, line 39, at end insert—

‘(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10.’.

Amendment 99, page 105, line 42, leave out ‘to a child’.

Amendment 100, page 105, line 43, leave out first ‘the’ and insert ‘a’.

Amendment 101, page 106, line 1 , leave out first ‘the’ and insert ‘a’.

Amendment 102, page 106, line 3 , leave out first ‘the’ and insert ‘a’.

Amendment 83, page 108, line 44 , leave out sub-paragraphs (5), (6) and (7).

Government amendments 55 to 59.

Amendment 113, page 112, line 5 , at end insert—

‘Immigration: victims of domestic violence and indefinite leave to remain

24A (1) Civil legal services provided to an individual (“I”) in relation to an application by the individual for indefinite leave to remain in the United Kingdom or a claim by the individual to a right to reside in the United Kingdom, on the grounds that—

(a) I was given leave to enter or remain in the United Kingdom for a limited period as the partner of another individual present and settled in the United Kingdom, or had the right to reside in the United Kingdom as the partner of another individual, and

(b) I’s relationship with the other individual broke down permanently as a result of the abuse of I by an associated person.

General exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

Specific exclusions

(3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.

Definitions

(4) For the purposes of this paragraph, one individual is a partner of another if—

(a) they are married to each other,

(b) they are civil partners of each other, or

(c) they are cohabitants.

(5) In this paragraph—

“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.

“associated person”, in relation to an individual, means a person who is associated with the individual within the meaning of section 62 of the Family Law Act 1996;

“cohabitant” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 62 of that Act);

“indefinite leave to remain in the United Kingdom” means leave to remain in the United Kingdom under the Immigration Act 1971 which is not limited as to duration;

“present and settled in the United Kingdom” has the same meaning as in the rules made under section 3(2) of the Immigration Act 1971;

“right to reside” means a right of residence established under Directive 2004/38/EC of the European Parliament and the Council 29 April 2004 on the right of citizens of the Union and their family members to move and reside within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EC, 90/365/EEC and 93/96/EEC.’.

Government amendments 60 and 61.

Amendment 145, page 112, line 11, at end insert—

‘(1A) Civil legal services provided to an individual for a matter arising out of any rule laid down under section 1(4) of the Immigration Act 1971 making provision for family members to enter or remain in the United Kingdom as the family member of a refugee or beneficiary of humanitarian protection.’.

Government amendments 62, 13, 14, 63, and 15 to 18.

Amendment 103, page 7, line 35, at end insert—

‘(7) But the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purpose of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse, and in this subsection “domestic abuse” means abuse of the kind to which paragraph 10(1) of Schedule 1 relates’.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

This rather substantial group of Government and Opposition amendments concerns legal aid for family and immigration matters, including domestic violence issues, as well as certain technical amendments to the Bill. I shall begin with a group of technical Government amendments, before moving on to the family and immigration ones.

Government amendments 10, 11, 13 and 14 amend paragraphs 3 and 33 of part 1 of schedule 1 in order to ensure that funding can be granted to the personal representative of a deceased child, vulnerable adult or victim of a sexual offence who wishes to pursue a civil claim for the benefit of the estate. The amendments are necessary because the Bill, as currently drafted, would limit legal aid to the child, vulnerable adult or victim personally. Where that individual dies, it is clearly right that legal aid should remain available to that individual’s personal representative to pursue a relevant claim on behalf of their estate. It is not necessary to make equivalent changes to other paragraphs in part 1 because relevant paragraphs do not exclude claims being brought by a personal representative. For other paragraphs, the case would either fall away with the death of a claimant or there would be another party who would be equally able to bring the claim.

Government amendments 15 to 18 relate to vetting and barring under section 4 of the Safeguarding Vulnerable Groups Act 2006 and applications relating to disqualification orders under sections 31 and 34 of the Criminal Justice and Court Services Act 2000. The amendments are technical and seek to ensure that funding for advocacy is provided in the relevant tribunal or court for these types of cases. In our consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, we announced our intention to retain civil legal services for section 4 of the Safeguarding Vulnerable Groups Act, which provides for a right of appeal to the upper tribunal against a decision to keep someone on a barred list from regulated activity relating to children or adults. The consultation paper provided that we would continue to fund those types of appeals to the upper tribunal on the basis that inclusion on a list would have a significant and lasting impact on the life and livelihood of an appellant who might have been included on the list in error.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

Has the Minister made an assessment of the amendments’ impact on organisations in Coventry such as the citizens advice bureau and the law centre?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I expect the amendments to be generally well received.

The Bill currently refers to funding for advocacy being available in the first tier tribunal, and amendments 17 and 18 correct that position by making available funding for advocacy for appeals to the upper tribunal. Amendments 15 and 16 serve a similar purpose but in relation to sections 31 and 34 of the Criminal Justice and Court Services Act. Appeals under section 31 are to the Court of Appeal, rather than the first tier tribunal, and funding for advocacy for such appeals is already covered by paragraph 2 of part 3 of schedule 1. Appeals under section 34 are to the High Court, and funding for advocacy for such appeals is already covered by paragraph 3 of part 3 of schedule 1.

I now turn to the family and domestic violence amendments, almost all of which have been debated in Committee already. I would like to reiterate why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid, as it stands, is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary applications to carve up family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will, therefore, remain available for mediation in private law family cases, and we estimate that we will spend an extra £10 million a year on mediation, taking the total to £25 million a year.

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

Does the Minister not accept that in many cases where people are separating or divorcing, there is an imbalance of power, whether financial or emotional, and that mediation is simply not suitable for many such cases?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I certainly accept that there will sometimes be an imbalance, and in relation to court proceedings themselves, we are proposing other measures—the ability for a judge to give interim orders, for instance—aimed at redressing that imbalance. However, I also accept the hon. Lady’s suggestion that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family law cases where there is evidence of domestic violence or where a child is at risk of abuse.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

I want briefly to read to the Minister what my constituent Lucy Abell has written to me:

“I work with single parents every day in my job…and know how desperately vulnerable a lot of people are when they are going through an acrimonious separation. The outcomes of children and families are very dependent on what happens during this time, and I find it incredible that the Government thinks these changes will save the government money in the long term.”

She works for Gingerbread and sees such people all the time. She is convinced that what the Government are doing will be terribly damaging for children of those single parents.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I am not entirely sure whether the right hon. Lady is talking about all cases of divorce or partners separating, or just those where there is domestic violence. However, I can tell her that in 90% of cases where there is a separating of the ways, the couple will reach an agreement. We are therefore talking about the remaining 10%. What we are saying in terms of policy is that for basic divorce—if divorce can ever be basic—people should not rely on legal aid for carving up the family assets or settling contact issues. However, I want to make it clear that funding for victims of domestic violence who seek a protective order will remain available.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee

Is it not also important to point out that the family courts have great difficulty dealing with contact issues, many of which are naturally unsuited to such treatment? Frankly, it is not very easy for a court to sort out arguments about whether a child can go to the scout group on a Friday night or whether they have to be with the other parent.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

My right hon. Friend makes an important point. I can tell him and other hon. Members that it has become clear to me, from my many meetings over the last year and a half with mediators and lobby groups such as those already mentioned, that in the vast majority of cases the parties are better off sorting out their problems together with the help of the mediator. For the most part, mediation is empowering. In most cases, the best way forward is for people to be able to sort out their own futures and those of their children without being told what to do by a judge, and that is what the Government support.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I want to ask the Minister about cases where domestic abuse or violence per se is not present, but where conflict between the parents none the less makes it simply impossible for mediation to work effectively. In the interests of children, will the Minister consider extending legal aid in those circumstances, so that where a mediator knows that mediation simply could not work, the parents will still receive advice?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The Government have changed the law through a pre-action protocol. The position from this April has been that where a divorce application is made, the parties have to see whether mediation is appropriate, as has been the case with publicly funded divorce cases. That does not, I hasten to add, mean that the parties have to go to mediation; however, they have to be assessed to see whether mediation is appropriate. I can tell the hon. Lady that the initial findings are very positive indeed. We have adequate mediators, with more than 1,000 mediation units around the country, and all are reporting a significant upturn in business, which is a positive outcome.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I agree with the Minister about the desirability of mediation wherever it can work best for all the parties. We would all like appropriate mediation to be used as much as possible in such cases, but can he clarify what he just said? Where a couple is found unsuitable for mediation because of the conflict between them, but where violence or abuse is absent, will they be able to access legal aid?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I am afraid that the hon. Lady misunderstands the nature of mediation. In normal circumstances, it is not for the mediator to sit in judgment on the individuals who turn up for mediation. That happens in the assessment. The mediator should explain to the individuals the purpose of mediation and it is for the individuals themselves to decide whether mediation is appropriate. If violence was involved, the mediator might suggest that, in those circumstances, mediation is not appropriate. If domestic violence is involved, the Government believe that legal aid should be provided.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

I want to be helpful to the Minister. Can he clarify how the amendments on legal aid would apply, for example, to rape crisis centres such as the one we have in Coventry? I am not too clear about how that will be affected.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The Government are supportive of crisis centres. We have increased our provision for them. The amendments do not in any way affect the issue one way or another. That is a separate policy item.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I really must make some headway. If the right hon. Lady will give me a few minutes, I might allow her to intervene again.

We will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, as with a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. We will still spend an estimated £120 million a year on private family law, including on domestic violence, after our proposed changes. This includes funding for about a quarter of the private family law cases that currently receive legal aid to go to court. We expect to continue to fund them where domestic violence or child abuse results from those cases.

Amendments 92 and 23 would put parts of the definition of domestic violence used by the Association of Chief Police Officers on the face of the Bill in paragraph 10 of schedule 1 in place of the existing definition of abuse. Identical amendments were debated in Committee. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence. It is used elsewhere in paragraph 3 of schedule 1, which provides for legal aid to be available in relation to abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse. Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others—lest confusion should result.

Photo of Caroline Lucas Caroline Lucas Leader of the Green Party

Will the Minister explain why a different definition is being used here from that used in other Home Office and Ministry of Justice documents? A lot of concern has arisen among women’s organisations that there is an agenda here; we would love to know what that agenda is.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

If the hon. Lady will allow me to get on, I will clarify precisely that.

The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph in which it appears. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subjected to domestic violence by the other party and is likely to be intimidated or otherwise disadvantaged in presenting his or her case should, as a result, be able to have access to legal aid. It does not provide that any individual who has been the subject of, or who is at risk of being the subject of, abuse as defined in that paragraph will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way the paragraph is intended to address. It establishes a description of legal services and whether an individual qualifies for those services in any specific case. It requires that an individual not only falls within the category in paragraph 10, but meets the criteria to be established in regulations made under clause 10.

Photo of Helen Goodman Helen Goodman Shadow Minister (Culture, Media and Sport)

We raised with the Government a couple of months ago the possibility of seeing the regulations in draft before reaching this Report stage. Many Members feel that that would have aided our consideration of these provisions. Why has the Minister not produced those regulations?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Because the Bill and relevant clauses are still going through the House and still have to go through the other place. The regulations will be produced once the Bill comes into law.

Those criteria will set out the specific requirements as to evidence of the fact of abuse or the risk of abuse. The definition of abuse itself is therefore only a preliminary part of the picture. In that sense, it might be argued that it makes little difference whether definition takes one form or another arguably rather similar form. However, we are still not convinced that the definition should be changed in the way suggested in the amendments.

The definition in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. Those references would cover, for example, abusive behaviour relating to the family finances. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, and this part of the amendment is unnecessary. The amendment is, however, also potentially misleading. It would take a definition intended as a very wide operational net to catch behaviour that should not be disregarded and should be investigated —although it may emerge from the investigation that no action is called for—and place it in a context that is inevitably after the fact and directed to the effects of the behaviour in subsequent proceedings.

Photo of Helen Grant Helen Grant Conservative, Maidstone and The Weald 5:15 pm, 31st October 2011

Does the Minister not accept that the fact that the definition is not specific has the potential to create some uncertainty, and that uncertainty, especially at the beginning of court proceedings, will create even more hardship for the victim, which may well lead to litigation in itself? Is it not possible to be more precise, so that people need not worry about what is and what is not acceptable?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I shall be discussing that in a little more detail, but I would answer my hon. Friend’s more general point that the definition could make things harder for a court by saying that the court will in any event have to take a view at some point

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

If my hon. Friend will let me finish, I will allow her to intervene again later.

The reference to “any incident”, for example, might be read as securing legal aid for any person who could point to some sort of incident regardless of whether it was serious or minor, such that the victim would not generally feel inhibited about pursuing litigation against the other party. That would not reflect the underlying intention, nor would it be the effect in practice if the regulations required certain forms of proof. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit their ability to present their case against the other party. The circumstances that will be accepted as evidence of the abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria. It is when the courts and others have determined that the level of the abusive conduct is such that protective action or prosecution is necessary that legal aid will be available.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

Given that the purpose of all this is to save money, I must assume that the definition in the Bill means that the Minister expects women, or occasionally men, who would formerly have pursued such domestic violence cases not to pursue them, and not to be eligible. Has he made an estimate of the likely reduction in legally funded cases?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I am happy to confirm that this particular definition is not directly related to saving money. It is there because it is a definition that works.

Amendment 23 goes beyond amendment 92 in referring also to the relationship between those involved. It would cover

“intimate partners or family members, regardless of gender or sexuality.”

This part of the amendment is superfluous, because it duplicates sub-paragraph 7 of paragraph 10 of the schedule. The sub-paragraph relies on the definition of associated persons in the Family Law Act 1996, which is wide, and covers the relationships set out in the amendment and more.

Amendment 91 also concerns the relationship between those involved. The Bill provides for legal aid to be available to victims of domestic violence for matters

“arising out of a family relationship”.

The amendment would change the phrase “family relationship” to “family or other intimate relationship”. It is unnecessary for the same reason as amendment 23. Paragraph 10(7) of the schedule defines a family relationship as one between persons who are associated with each other. The definition of “associated persons” in the 1996 Act, on which that paragraph relies, includes two people who

“have or have had an intimate personal relationship with each other which is or was of significant duration”.

The wording of the amendment therefore appears to add nothing.

Amendments 103 and 74 both set out a range of forms of evidence that would be accepted as demonstrating domestic violence for the purpose of qualifying for legal aid in private family law cases. Very similar amendments were debated in Committee, and in this case I can say to Joan Ruddock that there would be economic consequences. We want genuine victims of domestic violence to have the benefit of legal aid in such cases, when they would be disadvantaged by facing their abuser as the other party. However, during consultation we have heard many concerns that the proposal in the amendments could lead to a rise in unfounded allegations, and we want to guard against that.

Photo of Susan Elan Jones Susan Elan Jones Opposition Whip (Commons)

Organisations such as the National Federation of Women’s Institutes and Women’s Aid declare that they are very concerned about the Government’s proposals, so why does the Minister think he is right and they are wrong?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Because I and the Government consulted at some length on the proposals and received a lot of positive responses. As a result of that consultation we broadened the definition concerned, so we have listened. Indeed, we have tabled a further amendment today in relation to immigrants to broaden it even further.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I hope the Minister accepts that, although amendment 74 and other amendments would enlarge the evidential tests, they would still require a degree of evidence of to be given. That evidence may not come from such limited places as he wants, but it may be from GPs or women’s refuges. Yet he is saying that he cannot accept such evidence, because it would be part of “unfounded allegations”. Is he suggesting that those organisations collude in false allegations?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The hon. Gentleman makes a frankly ridiculous comment. He mentioned GPs, and of course a GP is qualified to tell whether someone has been subject to violence. However, they are not always well qualified to tell whether someone has been subject to domestic violence, because they may not have seen the circumstances in the home and may only be looking at the injury of the party coming to their surgery. The Government are looking for objective evidence.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I would like the Minister to respond to my question. As the tests in question are evidential tests, not subjective or self-referred, does that support his point about false allegations? Evidence from GPs is commonly used to support cases in criminal trials, including sometimes when a woman is unwilling to give evidence herself because she is intimidated or in fear.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The hon. Gentleman makes the exact point that I would have made in response to him. Evidence is used in a trial, but the GP does not make the decision, he gives evidence. We see the trial as being the objective evidence, and that is what we suggest in the Bill.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

My hon. Friend makes proper points about the need for courts to make findings of fact. Does he accept, however, that there is a potential problem with regard to undertakings? In proceedings in which undertakings could be a way of sorting out the problem satisfactorily, those advising the parties involved could prejudice their clients’ ability to obtain legal aid in future if domestic violence rears its ugly head again. Will he look again at how we can manage those circumstances so that people are not put in that potentially prejudicial situation?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I am happy to consider the particular circumstances that my hon. Friend mentions on the subject of undertakings, but again, we are talking about a situation that does not involve an objective test. It would be down to the word of the two people making the undertaking. In certain circumstances that may be correct, but in others it may not.

Photo of Sandra Osborne Sandra Osborne Labour, Ayr, Carrick and Cumnock

I worked with Women’s Aid for 16 years, and the Minister is taking us back decades by perpetrating myths about domestic violence that we thought we had seen the end of 30 years ago. Does he not understand that women who are subjected to domestic violence are, by definition, captive victims and there is no one else in the room? To say that they are not going to be believed is taking us back decades. Will he look at this again?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Everything the Government have said, and every action we have taken, shows that we take domestic violence extremely seriously. To some extent, the hon. Lady and other hon. Members are approaching this issue from the wrong direction in that they begin by addressing domestic violence, but that is not the right starting point. The starting point for the Government is that we are removing legal aid for private family law, but we are keeping it for domestic violence, as that is of the utmost concern to us. My point, however, is that we need to have objective evidence of domestic violence so that we target taxpayers’ money on genuine cases where the victim needs assistance because they are intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I shall make a little more progress first.

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, they will be set out in regulations under clause 10. We believe it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation as it can be amended to respond to particular issues that may arise during the operation of the scheme.

In the consultation, we suggested what might be the forms of evidence of domestic violence, and we listened to the views expressed on that in response. As a result, we have widened the range of forms of evidence, and, furthermore, only one of the forms of evidence would be needed. Legal aid will be available for victims of domestic violence in private family law cases where one of the following criteria is met: where a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party is in place or has been made in the last 12 months; there is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent; there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to a risk of harm to the victim.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Will the fact that there is, for example, a non-molestation order be taken as evidence of suitability for legal aid in family proceedings, and will legal aid be available to enable a victim of domestic violence to get such an order?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Yes, it will be. The hon. Lady makes a very important point, which has come up in consultation and has often been misconstrued. For such individuals, legal aid will be provided for the application for a non-molestation order, for example.

It might be helpful if I give an idea of the prevalence of these forms of evidence. About 24,100 domestic violence orders were made in 2010, about 74,000 domestic violence crimes were prosecuted in 2009-10 and there were 53,000 domestic violence convictions. Further, about 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010.

Photo of Helen Goodman Helen Goodman Shadow Minister (Culture, Media and Sport)

Surely the Minister can see that there is a 21,000 gap between the numbers of those prosecuted and those convicted? Surely he is also aware that the Crown Prosecution Service goes ahead with prosecutions only when there is a reasonable expectation of success in the case? Surely, therefore, he can see that we are not dancing on the head of a pin, as we are talking about 21,000 women every year?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Those numbers may overlap to some extent; in other words, someone might not have been prosecuted as there may have been a civil injunction, or perhaps a multi-agency risk assessment conference made the decision.

The forms of evidence we intend to accept will meet a high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and would provide an incentive for allegations where none currently exists. Let me make it clear that I am not questioning the integrity of genuine victims. However, during the legal aid consultation many people were concerned about providing an incentive for unfounded allegations, and the Government share that concern.

Photo of Helen Grant Helen Grant Conservative, Maidstone and The Weald 5:30 pm, 31st October 2011

Post-separation violence is very common in domestic violence cases. I am concerned that there is a 12-month time limit on the gateway criteria for family law matters, which means that if the violence occurs after that period many highly vulnerable women and children could fall through the net.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

That relates to amendment 74. I am going to deal with it and I am sure that my hon. Friend will be pleased with the answer I will give her.

Accepting self-reporting without objective evidence would prevent us from effectively focusing assistance on victims of domestic violence who were unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments refer to evidence from professionals in a variety of roles. I explained that we have widened our criteria so that legal aid will be available where the victim has been referred to a multi-agency risk-assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. Such referrals can be made by a range of professionals. Furthermore, a finding of fact in the family courts that domestic violence has occurred will trigger legal aid, and a court will be able to assess any relevant evidence.

Amendment 74, to which my hon. Friend referred, would prevent a time limit from applying to any evidence. We have said that a 12-month period, where relevant, will apply. We consider that 12 months will be an appropriate period to protect victims and to enable them to deal with their private family law issues. However, if the criteria were to arise again—for instance, if a second protective injunction is made—the time period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to the breach of an individual’s rights under the European convention on human rights, particularly article 6.

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

Will the Minister explain how the individual achieves the finding of fact in a family court in order to trigger legal aid if they cannot get legal aid to take proceedings in a family court?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The answer is that they can get legal aid to take those proceedings.

Amendment 93 would provide for legal aid to be available for any party in a private family law case who has been the subject of allegations of domestic violence or the risk of domestic violence. We debated an identical amendment in Committee. In considering whether alleged perpetrators should receive legal aid in these cases it is important to remember that we are seeking to protect the most vulnerable in society. Alleged perpetrators would not necessarily fall into that category in the way a victim of abuse would do so. Furthermore, allegations would not meet the test of clear, objective evidence that would otherwise apply in these cases. Accepting such an amendment would be likely to cost tens of millions of pounds in savings, without achieving the objective of targeting legal aid on those most in need.

I turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. These are amendments to paragraph 11 of schedule 1, which provides for legal aid to be available in such cases for the party seeking to protect the child, where there is objective evidence of the risk of abuse. Again, identical or near-identical versions of the amendments were discussed in Committee.

Amendment 96 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in sub-paragraph 11 (1) of schedule 1. The list of orders in that sub-paragraph is intended to cover orders and procedures used to secure protection, and it includes orders under section 8 of the Children

Act 1989, which may be used in that way, including contact and residence orders. The effect of amendment 96 would be that applications for maintenance or other financial provision for a child would be in scope whenever a contact or residence order has been made in relation to that child, regardless of any need for protection. The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases.

We have listened to the concerns raised during the consultation on this point. For example, one party might be seeking an order to bar an abuser from unsupervised contact with a child. We agree that child protection is of paramount importance and we recognise that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child requiring prompt and clear action. This is a separate rationale to a situation in which the adult has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser.

We do not consider that cases concerning financial provision are of equal priority and nor do they raise the same issues. Financial matters are of lower objective importance than child protection and we would not expect the protecting party to encounter the same level of complexity—still less risk—or need for urgent protective action in a case about financial provision. Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children.

Amendment 97 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such direction if it appears that it might be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary and, in any event, goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children.

Directions under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes because they relate to care and supervision orders under paragraph 1(1)(b) of schedule 1. Funding is therefore available in relation to section 37 issues. There is no reason, in principle, why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing.

Amendment 98 also references section 37 directions and would bring into scope any private family law proceedings that involve a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a broad proposition that I do not think can be justified.

Photo of Geraint Davies Geraint Davies Parliamentary Assembly of the Council of Europe (Substitute Member)

May I ask why the Minister is discussing amendments that have not been selected by the Speaker? He seems to be referring to amendments 98 and 97.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Amendments 94 to 102 have been selected.

Under amendment 98, a section 37 direction, regardless of the outcome of the investigation, would trigger funding for all parties in any private law family proceedings in which the child was involved. A section 37 order in itself does not mean that the child is at risk of abuse. The local authority staff could conclude, once they had completed their investigation, that the child was not at risk and that no further action was needed. If the local authority concluded that action was needed, it would put a child protection plan in place. As I have said, legal aid will be available in private law children cases in which a child is at risk of abuse for a party seeking to protect the child where there is objective evidence of the risk of abuse. A child protection plan will be accepted as objective evidence in criteria that will be set out in regulations under clause 10. That means that if a local authority put such a plan in place, that would trigger funding for the party seeking to protect the child.

Providing for legal aid to be available for any family proceedings involving the child, as amendment 98 would do, would mean that legal aid would not be targeted on proceedings about protection of the child, but could be available for proceedings that might not concern protection at all. For example, a case about financial relief for the parents could be covered if an application were made for financial relief for the child. Given that the words “involving a child” do not give much indication of how closely the child needs to be concerned, it might even be that a case between the parents about a matter that did not directly concern the child was included.

Amendment 98 would also provide for legal aid to be available for all parties to the proceedings. We intend to target funding on the protecting party. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

Amendments 94 and 95 would also widen the availability of legal aid under paragraph 11 beyond the parties seeking to protect the child. That would mean that legal aid would be available for the other party in private law children cases where a child is at risk of abuse. As I have explained, we decided to keep those cases in scope for the protecting party because protecting children from abuse is paramount. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

The tests we wish to use to determine the availability of legal aid in these cases are designed to be as objective as possible and to minimise the risk of false allegations. The tests are: where there is a criminal conviction or ongoing criminal proceedings for a child abuse offence; where a local authority has put a child protection plan in place to protect the child; or where there is a relevant finding of fact by the family courts that child abuse has occurred. They will provide clear and objective evidence of the risk of abuse. However, if the particular facts of an individual case mean that failure to provide legal aid for both parties would be likely to result in a breach of the individual’s rights under the Human Rights Act or European Union law, exceptional funding would be available.

I turn now to amendments 99 to 102, which seek to retain legal aid provision for all parties in private family cases where the court has made a child a party to proceedings. Identical amendments were debated in Committee. The Government intend to retain legal aid for a child who is a party in these circumstances. However, as we made clear in Committee, we do not accept that, where a child requires representation, adult family members should as a matter of routine also be given legal aid. There are a variety of reasons for a child to be a party, and not all will involve the complexity of a case. In cases where a child is represented, it does not follow that the case will necessarily be so complex or that the child’s involvement will render the case so complex or difficult as to require representation for all parties.

By their nature, some of the cases will be complex, and we recognise that in some circumstances people will be unable to represent themselves, but we think that those cases will be the exception. The exceptional funding arrangements will ensure that legal aid will be available where required. A failure to provide legal aid in cases where people genuinely could not represent themselves would be likely to breach an individual’s right to legal aid under the Human Rights Act or EU law.

I turn now to the immigration amendments, which include technical Government amendments, Government and Opposition amendments relating to domestic violence immigration cases and other amendments seeking to widen the scope of legal aid for refugee family reunion matters and immigration judicial review cases. Government amendments 61 and 62 will amend paragraph 25(1) of part 1 of schedule 1 to correct an omission in the meaning of asylum in the Bill. That will ensure that persons who make a claim to enter or remain in the UK based on the EU qualification directive are eligible for legal aid. Government amendment 60 will make a similar change to paragraph 25 to cover claims based on article 2 of the European convention on human rights, which sets out the right to life. Although most claims for asylum will be made on the basis of the 1951 refugee convention or article 3 of the European convention on human rights, the amendment will allow funding for cases involving execution and the death penalty; serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict; and unlawful killing.

Government amendments 55 to 58 clarify the wording of paragraph 17(7) of part 1 of schedule 1 with regard to the exceptions from scope to the exclusion of certain types of immigration judicial review proceedings. Amendments 55 and 56 will amend paragraph 17(7)(a) to clarify that the exception applies only to a judicial review of a negative decision in relation to an asylum application where there is no right of appeal to the first-tier tribunal against the decision. Amendments 57 and 58 will amend the exception in paragraph 17(7)(b) to add a reference to section 94 of the Nationality, Immigration and Asylum Act 2002. Section 94 allows the Secretary of State to issue a certificate on a number of different grounds, for example when an asylum claim is clearly unfounded. The certificate prevents an appeal to the first-tier tribunal being brought while an individual is in the UK. The amendments clarify the position and ensure that the policy is given effect.

Amendment 83 seeks to maintain within legal aid civil funding certain immigration judicial review cases that are very likely to be without merit. We debated an identical proposition in Committee. These are cases that either have already had a hearing on the same, or substantially the same, issue within a period of one year, or are judicial reviews of removal directions where there is less than one year between the giving of the direction and determination of the decision to remove. In response to our legal aid consultation, the Judges Council highlighted the large number of immigration judicial reviews that were without merit and, in effect, clog up the system. Only a minority of those would receive legal aid. As we made clear in Committee, the Government’s view is that it is wrong in principle for such cases to remain within the scope of funding.

The first category of case that we intend to remove from the scope of funding is one in which there has already been at least one appeal before the tribunal, or another judicial review within the last year, on the same or substantially the same issue. Judges in immigration judicial reviews too often see attempts to litigate on the same points again and again, essentially to string out the removals process, and we do not think that taxpayer funding should be available in such instances.

The second category relates to judicial reviews of removal directions, rather than the underlying direct decision. Such proceedings are often brought at the last minute, sometimes as people are literally being put on a plane, and again they are essentially designed to frustrate the removals process. Similarly, we do not think that the UK taxpayer should be asked to foot the bill for such claims.

There will of course be some genuine although unusual cases in those categories, and they would still in principle warrant legal aid. That is why we have made exceptions to our proposed exclusions, and they take into account principally the potential for changes in an individual’s circumstances over time.

In both categories, the exclusion would be subject to a one-year time limit. Judicial reviews of a refusal by the Secretary of State to treat a claim for asylum as a fresh claim—one with new facts or circumstances—would also be retained by making sure that when there was a possibility that there had not already been an opportunity for appeal, legal aid for judicial review would still be available, subject to the normal means and merits test.

As we said in Committee, we are retaining legal aid for most judicial reviews, immigration or otherwise. We accept that an individual’s ability to hold the state to account is an important principle, but when it has been abused, combined with the need to target resources effectively, we think that removing legal aid from those discrete categories of cases is justified, especially with the safeguards that I have set out.

Photo of Michael Connarty Michael Connarty Labour, Linlithgow and East Falkirk 5:45 pm, 31st October 2011

In the analysis of the evidence of the number of cases that actually had used judicial review to have another review that then turned out to be supported in the courts, does the Minister have actual figures to justify his blanket removal?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures. Most judicial review cases are funded privately rather than through legal aid, however, and I say that because I have seen the figures, and one needs to know that to understand them.

Government amendment 59 would amend part 1 of schedule 1 to bring domestic violence immigration rule cases into the scope of legal aid, as I announced to the Public Bill Committee on 19 July.

Government amendment 63 would amend part 3 of schedule 1 to ensure that civil legal aid were available for the advocacy of such cases in the first-tier tribunal. Advocacy will also be available in the upper tribunal by virtue of paragraph 14 of part 3.

Under the domestic violence immigration rule, someone on a spousal visa, which is valid for a limited period of time, and whose relationship has permanently broken down as a result of domestic violence, can apply for indefinite leave to remain in the United Kingdom. As I said in Committee, we accept that these cases are very unusual and different from other immigration cases, given the real risk that without legal aid spouses will stay trapped in abusive relationships for fear of jeopardising their immigration status. The trauma that they may have suffered will often make it very difficult to cope with that type of application, and they are also under time pressure, because they have only limited access to public funds to avoid destitution, so for those reasons we seek to make these amendments to schedule 1.

Amendment 113 adopts the same wording as the Government amendment I have just discussed, but with two differences—one that I am happy to look at further, and one that I think is unnecessary. First, the amendment would include within the scope of funding, civil legal services provided to an individual in relation to a claim by the individual to a right to reside in the United Kingdom, as well as an application for indefinite leave, when their relationship had broken down permanently as a result of domestic violence. EEA nationals and their spouses or partners, if from a third country, have a long-term right to reside in the UK if they are economically active or able to support themselves without becoming an unreasonable burden on public funds.

The Immigration (European Economic Area) Regulations 2006 make provision for third country nationals in such relationships to remain in the UK—that is, their right to reside can continue—if their relationship breaks down as a result of domestic violence. The application is different for those people who apply under the domestic violence immigration rule for indefinite leave to remain. The rules that apply are different. However, I am sure that Mr Slaughter will be pleased to hear that we are looking further at such cases.

Amendment 113 seeks to replace the definition of abuse adopted in the Government amendment and used elsewhere in part 1 of schedule 1 to the Bill with the definition of domestic violence used by the Association of Chief Police Officers. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence, and it would cover mental as well as physical abuse, neglect, maltreatment and exploitation. Indeed, it would not exclude from scope any of the types of abuse covered by the definition used by ACPO. Furthermore, the proposed definition of abuse would cover intimate partners or family members, regardless of gender and sexuality. That part of the amendment is superfluous, as the proposed Government amendment relies on the definition of associated persons in the Family Law Act 1996, which is a wide one that would cover the relationships set out in the amendment, and more. The second change proposed in amendment 113 is therefore unnecessary, but we will look at the first. I hope that hon. Members will be reassured by that.

Amendment 145 seeks to bring family reunion cases back into the scope of legal aid, at a cost of about £5 million a year. Those cases involve a person who has been granted asylum or refugee status and who sponsors the applications of their immediate family to join them. They are immigration applications, rather than asylum ones, and they are generally straightforward. The UK Border Agency guidance on these cases sets out the presumption of the granting of an application if the relevant criteria are met. The evidence required, such as marriage and birth certificates, should not require legal assistance to collate. The entry clearance officer may, on occasion, ask for DNA testing to prove the family relationship, but that testing would be free of charge to the applicant. These cases should not require specialist legal advice, and it is not therefore necessary for them to remain within the scope of civil legal aid.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

My office handles a lot of asylum and immigration cases, and of course some of them are entirely straightforward, as the Minister has suggested. Does he accept, however, that some family reunion cases are definitely not straightforward? They might involve a child being in a different country from the mother, or someone not having a passport. There could also be real issues involved in proving the relationship. Will he look again at the opportunity for some cases—I am not arguing for the generality—to be eligible for legal assistance?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that.

On the basis of everything that I have just set out, I therefore urge the House to support Government amendments 10, 11, 13 to 18 and 55 to 63. I also hope that right hon. and hon. Members will be reassured by what I have said about the other amendments.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I shall try to be a little briefer than the Minister—[Hon. Members: “Hear, hear!”] I was about to say that I was going to make some preliminary remarks, but the last time I did that, they went on for three hours. I shall address my comments almost exclusively to amendment 74, which stands in my name. The Opposition also fully support amendment 23, tabled by Caroline Lucas, which deals with the related matter of domestic violence. I give notice that we hope to press amendment 74 to a vote later this evening.

The Minister was slightly dismissive when he said that a number of the amendments on domestic violence had been dealt with in similar terms in Committee. They were indeed, and they were dealt with in some of the Committee’s most heated sittings. He has again shown a rather dismissive manner today, although Labour Members gave him a very clear expression of what they think of the Government’s attitude in the Bill to domestic violence. Perhaps he needs to get out more to see what is happening in the real world.

At 1 o’clock today, for example, the Minister could have attended the launch in Committee Room 8 of “Legal Aid is a Lifeline”, in which women speak out on the legal aid reforms. This report on domestic violence was produced jointly by the National Federation of Women’s Institutes and Justice for All. He could have heard the stark, moving testimony of women such as Jenny Broomfield and Sam Taylor, who were—let us make no bones about it—the victims of attempted murder by violent partners who, in at least one case, continued to stalk and pursue them for many years. They find quite abhorrent the Government’s attempt to restrict the criteria to 12 months, which amendment 74 seeks to change, and to restrict the terms of domestic violence. Those women relied on legal aid, in its current form, to get residence for their children, to find a safe place to live and to obtain a separation from their violent partners. They believe that, without it, their plight today would be much worse than it is.

Earlier this afternoon, the Housing Minister launched a very good report by St Mungo’s entitled “Battered, broken, bereft”, one of the leading findings of which was that 35% of women who have slept rough left home to escape domestic violence. It shows double standards and hypocrisy for the Government to cut back on provisions to tackle domestic violence on the same day in the Commons Chamber. I urge the Minister to listen to voices such as that of the Mayor of London, whose briefing for this debate states:

The Mayor would like assurances that women who have experienced domestic violence will not be barred from legal aid due to their having a lack of evidence.”

I would also like the Minister to listen to organisations such as Gingerbread, which states:

“Many individuals experiencing violence do not report that violence to the police or seek an injunction via the family courts. This is for a variety of reasons, including lack of faith in the justice system and fear that instigating proceedings would escalate violence. The evidential criteria in the Bill do not reflect the pathways that victims of domestic violence take to find help and support. The eligibility criteria must be broadened to include other forms of evidence such as evidence from a specialist domestic violence support organisation, health or social services.”

Those are the voices that the Minister should be listening to, as well as those that he hears in the Chamber today. So far, he has not done so.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

Is my hon. Friend aware that many victims of domestic violence have a great sense of shame, and feel that they cannot reveal through a legal procedure and third parties what is happening to them? None the less, they want to take legal action to get out of the relationship, but they might be so demoralised, afraid and intimidated that they cannot do so without proper assistance.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

My right hon. Friend is right. Only 40% of women who suffer domestic violence report it at all, and many go for years without reporting it. They certainly do not have the wherewithal to report it when they are imprisoned not only by violent relationships but by economic circumstances and by having to care for their children. That is what I meant when I said that the Minister does not live in the same world as those victims.

Photo of Lyn Brown Lyn Brown Opposition Whip (Commons)

I have here a report from a local newspaper. Kay Atwal, a reporter on the Newham Recorder, describes the lives of women she has met, saying:

“Your mail is opened by your in-laws, you can’t call your family or friends and you are not allowed out of the house. Your days are an endless round of cooking, cleaning and clearing up punctuated by threats and criticisms. And hanging over you is the constant fear that you could be deported from Britain if your husband divorces you.”

Does my hon. Friend agree that women such as those could well be affected by the changes that the Government are making today?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

We all have similar cases in our constituencies, and I am sure that the Minister must have, too. Those are the people to whom he should be listening.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Does my hon. Friend agree that women who are particularly fearful will not go to formal sources of support such as the police, and that, when they do pluck up the courage to go for advice, they are much more likely to go to somewhere like a women’s agency or a domestic violence specialist? Does he agree that it is regrettable that the Minister is not prepared to take evidence from such bodies?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 6:00 pm, 31st October 2011

I will come to that later in my speech, but it was exactly the point that I tried unsuccessfully, as so often, to raise with the Minister in my intervention. In the amendments, we accept the evidential basis, but we are seeking to broaden it to include exactly the sort of organisations that my hon. Friend mentioned. Last time I checked, at least 21 right hon. and hon. Friends supported amendment 74, some of whom wish to speak in the debate, and we have other important debates this evening, so I will try to keep my comments relatively brief.

According to the Home Secretary’s November 2010 publication, “Call to end violence against women and girls”, 1 million women a year experience domestic abuse in Britain. When those women make the decision to leave their abusive partners, often quite suddenly, they need care and expert legal help to escape safely and, if they have children, to ensure their safety too. For more than 60 years, family legal aid has provided that expert legal assistance, helping millions of people, mainly women, to escape violent, abusive and sometimes life-threatening relationships.

In November last year, the Government announced consultation on their plans to reform legal aid. As the Minister said, they plan to take family law out of the scope of legal aid, except when domestic abuse has occurred, but reason that making domestic violence the “gateway” to legal aid will also create an incentive for false claims of domestic violence. So they proposed a limited range of objective proof of domestic violence that would need to be presented before legal aid was granted.

Five thousands groups and individuals responded to the Government’s consultation, and almost all were opposed. As a result, on Second Reading, the Secretary of State announced a partial U-turn, adding to his list of evidential criteria. In the revised list, legal aid will be granted when a victim has obtained a civil injunction or criminal conviction against her abuser. We welcome that additional criterion, but fear that it is insufficient. Research has shown that, whereas more than half of women have suffered some form of domestic abuse during their lifetime, only a minority ever apply for injunctive release or report the abuse to the police. Women who, for whatever reason, do not want to go through legal proceedings, whether because of fear or simply because they are unwilling to relive the abuse again and again during the judicial process, will be disfranchised by the Government’s plans.

Legal aid will be granted when a victim has been referred to a multi-agency risk assessment conference—a MARAC—as the Minister confirmed today, or domestic violence must have been established as fact in the family courts. MARACs are a great success, but they are typically used for very serious cases. The final criteria that the Government allow are especially perverse, given that legal aid will not be available to obtain a finding of fact in the family courts. The Minister may say that that is not the case, but that is what the legislation seems to say. As such, the Government’s plans to remove family legal aid, except when a narrow and onerous range of objective proof is present, will place thousands of vulnerable women at considerable risk. That is why women’s groups, practitioners and the Opposition continue to harbour deep concern.

Labour’s amendment seeks to widen the evidential criteria of domestic violence to ensure that as many victims as possible receive help, while retaining the Government’s decision to limit private family legal aid to victims of domestic abuse. In doing so, we have tried to come to a joined-up, comprehensive view of the evidential criteria for domestic abuse that already exist in various Departments. The Government’s statement of intent, “Call to end violence against women and girls”, recognises that violence against women requires a focused and robust cross-government approach, underpinned by a single agreed definition. The Opposition entirely agree, as do the courts.

The recent Supreme Court case, Yemshaw v. London Borough of Hounslow, reinforced the courts’ view that there is but one definition of domestic abuse, and the Association of Chief Police Officers has promulgated that definition. The evidential criteria for domestic abuse are not currently set out in the Bill, but they are set out in the response to consultation. The Government plan to promulgate the evidential criteria by order, which is why I fear that the amendment of Caroline Lucas is insufficient by itself. We entirely support her amendment, but mine would go further in placing the evidential criteria into primary legislation.

The criteria in my amendment are an amalgamation of the objective criteria for ascertaining whether domestic violence has occurred from the Government’s response to consultation and the UK Border Agency’s criteria used in immigration cases. The amendment would do nothing more than unify best practice across government by ensuring that we have one singular evidential definition of domestic violence, much as the hon. Lady’s amendment would ensure that we have one singular descriptive definition of domestic violence.

The sort of evidence that my amendment would allow is as follows:

“a relevant court conviction or police caution…a relevant court order (including without notice, ex parte, interim or final orders) including a non-molestation order, occupation order, forced marriage protection order or other protective injunction…evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence…evidence that a victim has been referred to a Multi-Agency Risk Assessment Conference (as a high-risk victim of domestic violence) and a plan has been put in place to protect that victim from violence by the other party…a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim”.

I suspect that, so far, the Government are broadly with us, but what I sought from the Minister and did not obtain, is the reason why the following evidential criteria are inappropriate:

“a medical report from a doctor at a UK hospital confirming that the applicant has injuries consistent with being a victim of domestic violence, such injuries not being limited to physical injuries…a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant has injuries consistent with those of a victim of domestic violence…an undertaking”—

Mr Buckland is not in his place, but he raised this point—

“given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse”.

I hope that the Minister has read the Law Society’s comments—he may be familiar with practice in the family courts—that many more matters are dealt with by way of undertaking than by way of trial process. Excluding undertakings from his criteria makes it not only logistically more difficult, but almost certain that the trial process, with all the inherent difficulties of inflaming the situation, will be the norm rather than the exception.

Photo of Helen Grant Helen Grant Conservative, Maidstone and The Weald

On a point of clarification concerning the undertaking, which my hon. Friend Mr Buckland raised, an undertaking is a legally binding document. It is signed by the parties and usually sealed by the court. It is a solemn promise that is given to the judge. If it is breached, the person who breaches the order can commit on it, so it is specific and clear, and eminently acceptable in my opinion to be part of the criteria. Having been a domestic violence and family lawyer for the past 23 years, I am worried that the exclusion of undertakings from the criteria will create a perverse incentive not to dispose of a matter at the earliest opportunity, but to continue with the litigation from fear that further problems may come out of the woodwork, which, as family lawyers, we believe are coming in the future. I ask my hon. Friend the Minister to reconsider that.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

If he wishes, I will give the Minister the opportunity to intervene on me, and to reply to the hon. Lady, or he may wish to deal with the matter subsequently. I have nothing like her experience, but I have had the experience many hundreds of times of explaining undertakings and their seriousness to clients. She is absolutely right. In law, there are clear differences, but in practice the effect of an undertaking is the same in relation to perpetrators as the outcome of a trial in terms of the penalties available against them. Excluding undertakings is a huge and glaring omission from the Bill.

The other criteria are

“a letter from a social services department confirming its involvement in connection with domestic violence…a letter of support or a report from a domestic violence support organisation…or…other well-founded documentary evidence of abuse (such as from a counsellor, midwife, school or witnesses.”

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

On paragraph (j) of the hon. Gentleman’s amendment, I can see where he is heading, but would that require a state registry of domestic violence organisations to exist so that they could be validated in order to put in a claim legitimately?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I think the hon. Gentleman is trying to be helpful, but he is over-complicating matters. He is also missing the central point, which is that our issue is not, as the Mayor of London’s appears to be, with self-referral or with the Minister’s point about false claims, but with the scope for evidential support. We believe that organisations, whether they be medical or domestic violence organisations should be sufficient to be regarded as evidence, just as they often are in trial processes.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

I am genuinely trying to helpful, though I know that the hon. Gentleman might find that difficult to believe. All his other examples—general practitioners, hospital doctors, undertakings from a court, social services departments—are instruments of the state, as it were. I would be happy for many organisations in my constituency that support women in a domestic violence situation to give evidence to a court on this matter, but that does not mean that all organisations that claim to speak for women should be able to do so.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

The hon. Gentleman is being a little pernickety. It is a practical reality that in many cases voluntary organisations, which have vast experience of supporting women, will be providing that support, not only in an emotional and a practical sense but in an evidential sense.

Photo of Sandra Osborne Sandra Osborne Labour, Ayr, Carrick and Cumnock

Does my hon. Friend agree that many women go backwards and forwards to the likes of Women’s Aid time and again and do not disclose it to anyone else—including, often, their GP—and that had it not been for such organisations, the problem would not have been addressed as it has, although it has been totally undermined, as an assessment of a societal problem, by what the Government are doing today?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am grateful to my hon. Friend for sharing her experience.

Contrary to the Government’s guidance, the amendment would not limit the time since which such evidence was generated to a year. I am not seeking to derail the Government’s intent but merely to ensure that they live up to their own aspirations—to utilise a single agreed definition of domestic violence and to ensure that those who suffer domestic violence get access to requisite public services. This ought to be uncontroversial, yet the Government have so far resisted our submissions on all points. This is the last opportunity for this House to make a difference on the Bill. This is critical if we are to protect women—it is mainly women—who are victims of domestic violence.

It is not just me who is saying this. The Women’s Institute is demanding changes, as are Rights for Women, End Violence Against Women, and some Government Members. In Committee, Members were whipped—some unwillingly, I am told—to vote against these amendments. I am sorry that Anna Soubry is not in her place, because after the Committee she told the press:

“We’re not happy about the changes in legal aid…we’re fearful they will affect women who are separating from husbands. We’ve identified that as a problem.”

She is right about that. I ask her and the hon. Member for South Swindon, and other Members who have genuine concerns about this—I am sure that that goes for Liberal Democrat Members as well—to join me and my right hon. and hon. Friends in the Lobby later this evening, when will we have a chance to vote for a practical, joined-up, consensus-based solution on domestic violence

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 6:15 pm, 31st October 2011

In Committee, our debates on domestic violence were among the most heated, because of the seriousness of that offence. In my own borough, 40% of violent offences relate to domestic violence. I know that the Minister is aware of the difficulties that arise for women who are experiencing domestic violence—admitting that it is taking place in the first place, giving evidence, and so on—and I am sure that he appreciates the challenges that they face. I know that he will have looked carefully at amendment 74, tabled by the Opposition, which seeks to widen the definition of domestic violence.

I should like briefly to speak to amendment 23, to which I have added my name. My hon. Friend Mrs Grant, highlighted her concerns about the discrepancies, or perhaps lack of consistency, in the definitions of “domestic violence” that are being used. Despite the Minister’s response, further clarification is needed on the reasons why different definitions are appropriate in different places. He will have heard Members on both sides of the House express concerns about undertakings, in particular. That point has come across very strongly today, as it did in Committee.

I do not want to detain the House further, because other Members want to speak and there are a large number of amendments relating to domestic violence. I hope that some progress could still be made on this issue, if not through an immediate response from the Minister, then perhaps when the Bill reaches the Lords.

Photo of Helen Goodman Helen Goodman Shadow Minister (Culture, Media and Sport)

As the Minister said, we debated this issue in general at some length in Committee. I shall speak in support of amendments 23, 74 and 96 to 98.

A central concern is the narrow and restrictive definition of “domestic violence” that the Minister is putting into the Bill. Once again, we have heard remarks from him that demonstrate his lack of understanding and his lack of sympathy for people in this situation. He said in Committee, and he said again today, that his criteria

“all avoid self-reporting and involve a significant level of state intervention.”

That is indeed the case. The problem is that in taking that approach, he is treating women as if they are not adults capable of self-reporting. That is why many Labour Members feel that he is taking us back 30 years. He said:

“We are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting”.

He said that he is

“not persuaded that the medical professionals would be best placed to assess whether domestic violence has occurred” even though

“they may witness injuries”.

He said that he does not believe that, in themselves, allegations of domestic violence are objective. He said, as he said again today, that the tests he wishes to use

“are designed…to minimise the risk of false allegations.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 6 September 2011; c. 359-64.]

That is a problem. If his objective is to minimise the risk of false allegations, then his objective is not to maximise the support that women need.

Following the extremely concerning debate that we had in Committee, on 8 September I wrote to the Under-Secretary of State for the Home Department, Lynne Featherstone, who is responsible for issues relating to women and equalities. On 25 October, I finally received a reply, in which she says:

“You make the point that the definition of domestic violence used in the Bill is much narrower than the ACPO definition. My understanding is that the definition of “abuse” in the Bill is a broad one…We have been assured by the Ministry of Justice that the definition used would not exclude, for the purposes of legal aid and private family law cases, any of the types of abuse covered by the definition used by ACPO.”

This letter is quite extraordinary. She goes on to say:

“The Government is clear that objective evidence will be needed to ensure that legal aid in private family cases is focused on those who may be intimidated and unable to assert their rights as a result of domestic violence or the risk of harm by the other party to the proceedings”.

Her reliance on the assurances from the Ministry of Justice that its definition is the same as that used by ACPO leads me to ask two questions. First, what is the point of a Minister for Equalities who does not check with the rest of the world what is going on? Secondly, did the Minister tell her that his definition was the same as the ACPO one, when everybody knows that that is not the case?

The Minister for Equalities could easily have listened to the Bar Council—not, one would think, a wild group of left-wingers who are determined to promote a feminist picture of the world. One would think that she might have listened to it. It wrote to many Members this week.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

It is the case that the ACPO definition and the definition in the Bill are broadly similar.

Photo of Helen Goodman Helen Goodman Shadow Minister (Culture, Media and Sport)

Broadly, yes, but not precisely—that is the problem. About an hour and a half ago, the Minister accused hon. Members of dancing on pinheads. He is now the one who is doing that. We have demonstrated that under his definition, some 20,000 victims of domestic violence will not get legal aid each year who would get it currently. That is the problem.

I remind the Minister of what the Bar Council is saying:

“The narrow definition of domestic abuse, which is more restrictive than that used by the Home Office and the Association of Chief Police Officers and will limit legal aid to victims of certain ‘types’ of abuse”.

It states that there are:

“Excessively narrow referral mechanisms for victims of domestic abuse, who will not be eligible for civil legal aid if, for example, they have been admitted to a refuge but have chosen not to bring proceedings against their abusive partner”.

Photo of Debbie Abrahams Debbie Abrahams Labour, Oldham East and Saddleworth

Does my hon. Friend agree that the Government’s impact assessment shows how narrow the definition is? Is this not yet another attack on women by this Government?

Photo of Helen Goodman Helen Goodman Shadow Minister (Culture, Media and Sport)

It is indeed. We heard that from Mrs Grant, who made some excellent interventions. We see once again that the Ministry of Justice is at a severe disadvantage because it has no women in its ministerial team. My hon. Friend is absolutely right.

The Bar Council is also concerned, as are many hon. Members, about the impact on children, referring to:

“The decision to exclude most adults in private family law cases from the scope of legal aid, even in cases of significant difficulty involving legally represented children, which may result in children alleging abuse being cross-examined by the alleged abuser.”

The problem is that the Minister is so determined to use a definition that he believes is watertight that he is ignoring the reality. The reality is that most women experience 20 episodes of violence before they report it to the police. By insisting that only a report to the police followed by various court actions is required for legal aid, the Minister is condemning more women to suffer domestic violence in silence.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I will speak briefly on amendment 145, which the Minister has addressed and on which I asked him a quick question. If I may, I will amplify that point.

My point is not about the important matter of domestic violence, which my right hon. Friend Tom Brake has spoken about and on which there is continuing concern across the House, but about the families of those who are rightfully admitted to this country as refugees or beneficiaries of humanitarian protection. Many Members, including me and my neighbour Joan Ruddock, encounter such cases routinely in their constituency surgeries. This is not an irregular occurrence in our work.

Somebody who is granted the ability to stay in this country as a refugee because of race, religion, nationality, membership of a social group or their political opinion, or somebody who is given humanitarian protection because they are at risk for some other reason, might have applied for their family members to come with them as dependants or their family members might have made separate, parallel applications. In such cases, their family members can be dealt with in the same way.

However, we all know that when people come here as refugees, they do not often do so in an orderly way as a family. It might be that one family member comes here from one country and other family members from another. For example, when Sierra Leone had its civil war, people fled from it with some ending up in Gambia and others elsewhere. It might be that one family member comes at one time while another is left in a refugee camp. It might be that other family members had disappeared when the application was made. It might be impossible for the mother, the wife or the daughter to make an application at the same time. It is those cases that I am concerned about.

I accept that often there are straightforward applications that do not have complications, but sometimes there are significant complications and we need to ensure that people are not disadvantaged because they cannot match the state in argument.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

The right hon. Gentleman is indeed my neighbour and we share such cases. Perhaps I can help him by giving an example. I am dealing with a woman at the moment who has advanced cancer. She has children and has the right to be here, and she is trying to get her husband to join her. She tried to make the application alone, but got it all wrong and the state said no. She does not need me giving her a bit of advice, but proper legal assistance to make her case speedily and accurately. She would not get that under the future arrangements.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

The right hon. Lady gives a good example. It is often people with difficult personal circumstances who have such problems. They might be here and unwell or dying. They might be literally on their own in this country. All the evidence shows that if we want people who come here as refugees or for humanitarian protection to integrate, the best way to achieve that is for their family to be here to give them support; often that is intergenerational support.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

Will the right hon. Gentleman give way?

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I am trying to be quick, but I will.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

Does the right hon. Gentleman agree that an increasing difficulty for the people he is describing is that they have to make a telephone call to see whether they are eligible for legal aid? We are talking about people who might have poor command of the English language. The people they talk to are not trained lawyers. They will no doubt get their stories, their dates and everything mixed up. That will, yet again, make it impossible for people to get the legal help and advice that they need, even when their case is totally justified.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I understand the hon. Lady’s point. My right hon. Friend the Member for Carshalton and Wallington and I, along with others, have tabled an amendment on telephone access that we will come to later. This is one of the matters on which I have had a significant number of representations from law centres and people who deal with such work. I understand her point and agree with it.

It is often not possible for family members to claim asylum because they are not in the UK. They therefore do not get the benefit of legal aid.

The UK Border Agency often requires evidence of the relationship. That is not surprising and it is perfectly proper. People are asked to undergo DNA tests. Spouses are asked to produce evidence of their marriage. That might be straightforward, but it might not be, either in law or in practice.

Photo of Yasmin Qureshi Yasmin Qureshi Labour, Bolton South East

I agree with the right hon. Gentleman. At the Conservative party conference, the Home Secretary gave a completely misleading example when she said that in one case somebody was found to have family rights because of a cat. Does he agree that such things do not help in these debates?

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats 6:30 pm, 31st October 2011

It might or might not surprise the hon. Lady to hear that I was not at the Conservative party conference. I can mischievously go one step further and say that I was on an official visit to India at the time, so if she will forgive me, I cannot comment on the conference because I did not even see it. I understand where she is coming from. Such sensitive issues are often capable of being misrepresented by our constituents and by public opinion at the tabloid end of the press. However, if my family had undergone such trauma, I would want the support of the country in which I had sought refuge.

I shall briefly add a last few facts, and I pay tribute to the Immigration Law Practitioners Association, which provides a good support system for all who deal with this sort of work. First, 61% to 66% of refusals are overturned on appeal. The evidence, therefore, is that people win such cases not occasionally, but regularly, even if they need to come through the system on appeal.

Secondly, the situations of the applicants often seriously compound their difficulties in making the application or pursuing an appeal. Family members could be in hiding, or they could be in a country where they have no lawful status. They too might have faced or fled persecution. The remnants of the family might be isolated, in hiding or shunned. As Mrs Moon said, they could be in dire financial straits. For such people, making phone calls, let alone international ones, would be impossible. The chances of a person in Shatila refugee camp, for example, having the cash or ability to make international phone calls to establish their rights to join their family in the UK are minimal. Camps are not geared to dealing with individual international applications for family reunion—they are just not an appropriate context for that.

Evidential demands could be substantial and protracted. People might need witness statements from other relatives, who could be in this country or another one, which might not be the one where the applicant is. Family members often have to be traced and communication is sometimes slow. The right hon. Member for Lewisham, Deptford made the point that submitting the application correctly so that it gets through the system is not easy.

However good the immigration judge is, a litigant in person in those circumstances, who might have poor English and who might be only a recent arrival, and who might be worried and traumatised by their history, might not be in a good position to make an effective case in front of the court. In any event, the judge cannot, by definition, see the other family member, because they will not be here. The judge cannot hear evidence from them or others from whom he may need to hear.

I hope the Minister understands. Those are real cases, and I hope I can appeal to the sympathy and understanding of colleagues in the Department. If somebody can come here as a refugee or on humanitarian grounds, the logic must be that their immediate family should be able to come with them. That is the expectation of the international agreements that we have signed, which the Government should understand.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

The right hon. Gentleman makes an utterly compelling case—I agree with it totally and I wish to vote for the amendment, so I trust that he will press it to a Division.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

In one sense, the right hon. Lady makes an absolutely reasonable proposition. I am determined that we will win this argument, but I will wait to see what the Minister[ Interruption . ]

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

No, it is not pathetic at all. Let me say to the right hon. Member for Lewisham, Deptford that there are four groups of amendments and that we have until 10 o’clock. The Opposition Front Benchers want to press their amendments to a Division, as do other colleagues, including me and my right hon. and hon. Friends. I hope the Minister will be helpful—[ Interruption. ] No, he originally indicated following my intervention that he was willing to look at the case again. I am determined to win that case. Whether we can win it today is not entirely in my hands. I hope that that is helpful, and I look forward to the right hon. Lady’s continued assistance in ensuring that we win the argument.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

With respect to Simon Hughes, that speech was absolutely breathtaking. I have a high regard for him, but in this instance, his colleagues in Committee did not issue a single word about this and many other important humanitarian issues. I do not know which audience he is addressing, but no work whatever was done by his colleagues in Committee—I was there.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I know the right hon. Gentleman was there. As I understand it, this issue was not debated in Committee and no amendment on it was tabled by either Government or Opposition. That is why I am raising it now.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.

I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If Mr Slaughter is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.

I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.

Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.

The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.

Amendment 93 would insert the words

“or where an allegation is made that B has been abused by A or is at risk of being abused by A” to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.

Amendment 96 would insert the words:

“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,

and amendment 97 would add the words:

“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.

In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.

Amendment 98 would add

“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10” to line 39. That would have the effect of bringing within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.

Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.

Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that

“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse, and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.

The intention is self-evident.

I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

Does the right hon. Gentleman agree that the problem is that we are coming from different directions? For Opposition Members, the priority is the protection of women and children who have been abused, who are facing abuse and who live in fear of their lives. For Government Members, the priority is saving money.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I have to agree with the hon. Lady, and I would pray in aid another point about the more general civil cases where litigants in person will be 10 times more prevalent in courts than they were previously. That is simply to save money, but actually it will not save money. Instead, it will increase pressure on courts and court time and will be a complete disaster—a dog’s breakfast. It is worth remembering that 40% of magistrates and county courts have been closed and that the Ministry of Justice was looking for a 40% decrease in its first budget—that is rather convenient. However, I have no doubt that she is right, and it grieves me that money comes before the welfare of young children. We are talking about knife crime, juveniles going on the wrong side of the law and so on, and the Bill will do nothing to address that. Instead, I fear that it will make matters even worse, although I hope that I am wrong.

Photo of Catherine McKinnell Catherine McKinnell Shadow Minister (Education)

The right hon. Gentleman is making a powerful case about the impact that the Bill will have not just on women suffering domestic violence, but on children in that situation. Does he agree that there is a significant risk not just that it will not save money for the MOJ, but that it will result in increasing costs across Departments, for social services as a whole and for the future of our society, leaving children in those difficult situations?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

The hon. Lady is absolutely right. When we take into account housing costs, benefits and all kinds of things, we see that it will be a huge amount of money at the end of the day.

Amendments 91 and 92 would widen the definition of “domestic abuse”, bringing it in line with the definition adopted by the Association of Chief Police Officers. There remain grave concerns about the Government’s chosen definition. I know that many other hon. Members feel strongly about this, and I believe, as they do, that the definition in the Bill should accord precisely with ACPO’s definition, which is

“any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality. (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)”

My amendments would bring the Bill’s definition in line with that definition. In Committee, the Minister claimed repeatedly that if we widened the definition of domestic violence, we would have to rely on self-reporting. I do not quite understand that correlation, but never mind. That point was made ad nauseum. I fear that the Government do not realise the gravity of the situation. Considering the criminal under-reporting of domestic abuse, it is astonishing to think that the Government are giving so much weight to allegations of misreporting. Women will, on average, experience 35 incidents of abuse before reporting it to the police, and we should not treat their witness statements lightly.

What is more, the Minister claimed that the ACPO definition was not satisfactory, because it did not sufficiently establish objective evidence of abuse. He said that an allegation in itself or a police investigation would not constitute evidence for the purposes of legal aid. Once again, I emphasise to him and his colleagues that domestic violence can be inflicted in more subtle ways that do not leave visible marks and bruises: abuse can be financial, emotional and psychological, and can involve power games drawn out over long periods of months. Vulnerable individuals put their trust in our justice system and the state to support them when things go wrong. We must not lose sight of that responsibility, and we must not abandon victims of domestic abuse to undergo legal proceedings without recourse to legal aid and assistance.

The circumstances in which a person suffering domestic abuse must be treated as qualifying for civil legal aid are also excessively narrow and overlook the fact that many victims choose not to report the abuse to police, but seek assistance and medical treatment elsewhere. Amendment 103 would ensure that victims of domestic abuse qualify for legal aid in circumstances outside those narrowly prescribed by the Bill and so ensure that those in need would not go without vital legal aid and assistance.

Amendment 93 seeks to ensure that victims of domestic abuse cannot be cross-examined by their alleged abusers. Paragraphs 10 and 11 of schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse, but not for the adults against whom the allegation is made. The consequences of that will be a significant inequality of arms in such cases. In many instances, I fear, the alleged victim will face awful cross-examination from the adults against whom the violence is alleged.

Photo of Yasmin Qureshi Yasmin Qureshi Labour, Bolton South East 6:45 pm, 31st October 2011

Does the right hon. Gentleman agree that the criminal courts accepted many years ago that in criminal cases defendants could not cross-examine victims on matters such as sexual offences? To take away that right in the civil courts, where people are facing equally harrowing situations, is completely wrong and would be at variance with the criminal courts.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

Yes, and I wonder about the quality of the evidence coming out of that flawed process.

I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:

“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”

Amendments 96, 97 and 98

“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”

Amendments 94 and 95 are consequential amendments.

The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:

“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,” which, as I have said, will

“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”

Amendments 99 to 102 would have the effect of

“bringing within scope the provision of legal aid for adult parties in such cases.”

I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me for this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:

“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”

None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.

First, the judiciary’s proposals were advanced only on the basis that

“careful further consideration would need to be given” before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.

The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have

“already had…one full oral hearing,” yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.

To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.

The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.

Photo of Caroline Lucas Caroline Lucas Leader of the Green Party

I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.

In a debate earlier this month, the Minister for Equalities assured me that the Government had

“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Hansard, 12 October 2011; Vol. 533, c. 136WH.]

That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.

In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw v

. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government as to why not?

Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.

In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.

Government amendment 59 is worrying because it is restricted to persons who are present in the UK with limited leave as spouses or partners of British citizens or settled persons whose relationships break down during the period because of domestic abuse and who can prove this to the satisfaction of the Secretary of State.

The UK Border Agency has recognised the particular difficulties experienced by people in this position, and the Government helpfully identify four factors relevant to why legal aid should be provided in those cases. They include such things as the risk that victims will stay trapped in abusive relationships for fear of jeopardising their immigration situation; the trauma they might have suffered, which often makes it difficult to cope with making an application; time pressures that apply in immigration proceedings; and difficulties of access to a properly designated immigration adviser. I agree that those are all important issues and protection is needed in those cases, but the point is that those circumstances do not merely apply to those who fall within the domestic violence immigration rule. There are several other situations in which a person’s immigration status is dependent on a partner where the person might be a victim of domestic abuse and might therefore be trapped in an abusive relationship because of fears about their immigration status.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Kilburn 7:00 pm, 31st October 2011

There is another element in the situation to which the hon. Lady refers. Indeed, I have more than one constituency case where the individual being abused comes, as members of their family have told me, from a culture where such attacks are never reported to the police and these women are expected to suffer in silence. In many instances, these are elderly women.

Photo of Caroline Lucas Caroline Lucas Leader of the Green Party

I thank the hon. Lady for her intervention, which raised a really important point. It underlines the fact that we need from the Government a fuller explanation of exactly how they are going to consider the first half of amendment 113.

Let me finish by saying that the people I have particularly in mind are victims of domestic abuse who are not necessarily probationary partners. They might be a partner of someone with limited leave or of a person exercising European free movement rights. Although they do not fall within the domestic violence immigration rule, they might well face the very same problems as those who do. I look forward to hearing more from the Minister about how he intends to take forward the concerns raised in amendment 113 and that have been mentioned by other Opposition Members tonight. I very much hope that he can offer some serious reassurance for the future.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I speak in support of amendment 74 and endorse many of the comments made by Caroline Lucas about her amendments. I shall add a couple of points about the definition of domestic violence and abuse and say a little more about the appropriate role of mediation.

We are all at a loss to understand exactly what distinction the Minister is drawing between the definition given by the Association of Chief Police Officers and the definition in the Bill. He variously says that there are differences and that different standards are required in cases where an investigation is taking place rather than action in court. Then he says that there is not much difference and he described the definitions earlier as broadly similar. Frankly, I think this definition is simply all over the place. That matters significantly, because it will put extra uncertainty and pressure on victims of domestic violence and abuse at precisely the time when they do not need to be uncertain. They have become brave enough to speak up and pursue their case, but it is not clear whether or not they will be covered by the scope of legal aid.

I am particularly concerned that the Minister seems to be putting in an extra hurdle for women who are victims of domestic violence but who are nevertheless able to make a case that they should be in receipt of legal aid. They can make an application saying that theirs is an exceptional case. They will presumably have to go to the new decision-making authority set up in the Bill, but we have no understanding of how that will be done, how much delay it might cause or what sort of evidence will be required to get access to exceptional funding to bring a case. All that is left unclear and simply adds further pressure and difficulty for victims of domestic abuse.

Amendment 74 is designed to be more precise about some of the evidential factors that should be considered. I would like to respond to the important point raised by Ben Gummer when he asked my hon. Friend Mr Slaughter whether it would be helpful to have some sort of national register of agencies, from which such evidence could be received. I am sure that that will not be of any great attraction to the Minister, but the UK Border Agency is already well placed to accept evidence from such voluntary sector and third sector agencies. That provides a model that could apply here.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

My hon. Friend is absolutely right and made the point better than I did. Of course, the UK Border Agency accepts evidence from GPs, which the Minister appeared to pooh-pooh in his earlier comments.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Indeed, the Minister was more concerned to avoid the number of false allegations that he seems to regard as the major difficulty with domestic abuse cases. Opposition Members are far more concerned about the protection of vulnerable victims and believe that that should be the first and overarching priority. [Hon. Members: “Hear, hear.”]

Finally, I want to say a little more than I was able to raise in interventions about the use of mediation. Of course we all want to see mediation used wherever it is appropriate and possible for separating couples to reach agreement through that route. We also know, however, that one thing that is particularly damaging to children is conflict. If there is a high degree of conflict, it is unlikely, even if domestic violence or abuse is absent, that mediation is going to be effective or can possibly work.

We are therefore again a bit puzzled about the Minister’s intentions on the use of mediation. I think he said earlier that the requirement was not to undertake mediation but to go through a process through which it would be determined whether mediation was suitable for a separating couple. Then he said that there would be no compulsion on people to accept mediation. Well, that is certainly true, but if there is no other form of help or assistance available, it is very much a Hobson’s choice.

Can the Minister see any scope for extending access to legal aid to those small number of cases where there is a high degree of conflict and perhaps no abuse or violence as such, but where the conflict would certainly be damaging to the well-being of children? What assessment has he made of that? What does he consider might be the extent of such cases? Has he any idea or any calculation? What consideration has he given to the impact on children and will he look at ways to offer particular protection to children from the very harmful effects of conflict, which we all know to be the case?

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

I have an interest to declare, as I have worked as a family lawyer and predominantly in legal aid over many years. I have been involved in many cases, some of which involved domestic violence and some not. The Minister seems obsessed with the notion that people might make false claims to get legal aid.

Photo of Yasmin Qureshi Yasmin Qureshi Labour, Bolton South East

Does my hon. Friend agree that there is no statistical evidence to show that reports of false allegations of domestic violence are any higher than they are for any other crime where people are potentially making false allegations?

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

As far as I am aware, there is no such evidence. What the Minister has in mind is perhaps just an untoward result of his own legislation. I am not doubting that there will be many false accusations to be made here, but by ruling out legal aid for family cases and making the only route to it the ability to jump through the domestic violence hurdles, perhaps a situation is being set up, which might lead to that happening. It is an unnecessary consequence of a decision that has already been made to take legal aid out of family cases.

One might sometimes get the impression that legal aid is something for which lots of people qualify so that it has become a big problem in this country, but it is already the case that many people do not qualify for legal aid on financial grounds—even to get protection from domestic violence or to get the occupancy of their own home and the exclusion of a violent partner from it. Many people who already suffer the additional difficulties caused by relatively low incomes and small assets do not qualify, and even in cases of domestic violence the availability of assistance is limited.

The Bill could have another untoward consequence. Those advising people who have experienced domestic violence are likely to feel obliged to encourage them to take legal proceedings to establish the fact of the violence, regardless of whether such action is essential to their protection at that time. That will enable those people to jump through the hoop and qualify for legal aid for wider purposes, involving, for instance, what happens to the matrimonial home, what happens to the children and what happens in relation to other financial matters—issues that are extremely important to many women. Thus the potential for more litigation will be created. When applicants who would otherwise have qualified for legal aid do not do so, what will happen to the savings that we are told will be generated if additional, potentially non-essential, actions are brought?

In an intervention earlier, I asked a question to which I did not receive a satisfactory answer. The Minister said that a finding of fact in a family law case involving domestic violence would enable people to jump the hurdle, but I am not sure what kind of case he was referring to. An application for protection or for an injunction would be covered, but how will people gain access to the family court to secure that finding of fact if they cannot obtain legal aid in the first place? I do not agree with the suggestion that the Bill will widen the scope for qualification for legal aid.

I was concerned by some of the language used by the Minister. It reminded me strongly of things that I thought had ended. I remember that the police often used to say that women made up these stories, because it was not uncommon for women to report violence to the police and then “retract” their allegations. The police would say, “He will have his feet back under the table by tomorrow, so there is no point in doing anything.” That demonstrated a complete misunderstanding of the nature of abusive relationships, and of the pressures that were frequently placed on women to go back or take their men back—pressures exerted, sometimes inadvertently, by children whose mothers tried to put their needs first, or by other family members saying, “You have made your bed and you had better sleep in it”, or “Are you doing the best thing for the sake of the children?” That is not to speak of the financial and other practical pressures that may be imposed.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

All too recently the Government wanted to give anonymity to male rapists. Now women who face domestic violence will not receive the protection that should be offered to them. The Government are failing to take account of what we know about the implications for women and children who, having experienced domestic violence earlier in their history, end up in the criminal justice system. Is it not the case that they do not understand what happens to women and children—

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

I agree with my hon. Friend. Earlier speeches gave us the impression that we were retreating to an earlier position, and that much of the ground that many of us thought we had gained might be lost. That would be highly regrettable, and I hope that it is not the case. I hope that, even at this late stage, the Minister will reconsider his opposition to our amendment.

I was heartened to read in the Sunday papers that members of the minority party in the coalition were up for a fight on these issues. I hope that that was not just more Sunday paper grandstanding, giving a false impression to many campaigners and others who have been hoping against hope that the Government will see reason.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon 7:15 pm, 31st October 2011

It is a pleasure to contribute to the Report stage of the Bill. As a Government Back Bencher, I sat through and took an active part in the debates in Committee. They were comprehensive and dealt with many issues, not least the definition of domestic violence and the proposed criterion by which applicants may in future be able to benefit from representation via legal aid. I make no apology for having expressed, in an earlier intervention, what I considered to be reasonable concern about the application of the criterion. However, I think it important for us to bear in mind that the debate is not about the rights of women as against an approach that would deny them those rights.

Although Opposition Members have made some excellent contributions, one intervention on the speech of Sheila Gilmore betrayed a complete misunderstanding of the Government’s approach to the granting of legal aid to vulnerable people. No one is suggesting that there should be an end to legal aid for victims of domestic violence. Far from it. The Government are saying that there should be that protection, there should be that level playing field, and there should be that intervention. People who have been victims of domestic abuse—I prefer that term, because I consider it to be a wider and fairer definition—may be women or men, and they come from a variety of backgrounds. Such abuse knows no social or economic division.

I speak on the basis of nearly 20 years of experience, having prosecuted and defended in cases in which domestic violence was a factor. It is, perhaps, appropriate for me to chart from my personal experience as a criminal legal aid lawyer—although, as I have not practised in civil legal aid in recent years, I have no particular relevant interest to declare—the evolution of the courts’ approach to domestic violence. I remember the days when the phrase “It’s only a domestic” was used to describe these scenarios. That was wholly unacceptable, wholly wrong, and, according to our present standards, archaic. We have come a long way since those unfortunate days, and the courts have rightly been brought face to face with the realities of violence in the home.

Having met hundreds of victims of violence and abuse, I know that many of them do consider themselves to have been victims of domestic violence in the first place. They are people who were involved in a loving relationship, many of whom harbour the hope that they may return to their abusive partners. They are confused and vulnerable. Many are caring for children who have witnessed, or have been a party to, what has happened in the home. They do not know where to turn.

Giving evidence in court is a tremendous ordeal for such people, and many of them do not go through with it because they see it as a way of reliving their experiences in the home. The level and variation of their vulnerabilities is quite complex. I think, for example, of women who, having nowhere else to turn, go to refuges such as the one in south Swindon, in my constituency, which provides an excellent service for vulnerable women and their families. They are not mentally in a position to start immediate proceedings, whether those proceedings constitute a complaint to the police or the instruction of a solicitor. At that stage, when they come to the refuge, they have nowhere else to go and are literally in a state of desperation. They are not mentally prepared for the ordeal of having to go to the authorities. We must bear that in mind when considering the test applied to the finding of fact.

I know that the Opposition had that matter in mind when drafting amendment 74. I have looked very carefully at their proposal, and I sympathise with the motive behind it. Some of it has merit, but there are problems with it because it would not cure the particular mischief that Opposition Members have said could happen. None of us wants there to be any artificial inducement for people to claim that there has been domestic abuse when it has not happened, and my concern is that the amendment would not shut the door on that problem. The Government are right to identify that potential problem, and it was mentioned time and time again in the consultation to which the Minister referred.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Kilburn

With all due respect, I am having difficulty following the logic of the hon. Gentleman’s argument. He seems to be basing it on the belief that the Government’s desire to find fact is central and essential, yet he has already stated that many women who suffer severe domestic violence are in such a mentally discombobulated state that they find it impossible to speak to the authorities. We have all read recently of scandalous cases in which the authorities have markedly failed to protect women, even though the facts have been written in capital letters. Will he clarify his argument?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am very grateful to the hon. Lady, and I am happy to do so. We agree that when a woman presents herself at a refuge, there can be an element of discombobulation, to use the hon. Lady’s word. However, there comes a time—perhaps in a matter of days, or even longer in the case of particularly vulnerable victims of domestic abuse—when, with the support and help of professionals in the refuge or elsewhere, they are able to make a complaint. They can make a complaint to the police, in the form of either a telephone call or attendance at a police station with support, or they can get help from a solicitor and give them instructions to bring a case for a civil injunction or an ouster order. That has to follow. My point was that it is unfair to expect women to make a complaint immediately, in the hours that follow their departure from home. That is also true in many other contexts.

I think the hon. Lady and I would agree that, in the case of rape allegations, the rather worrying aspect in the past was that the victim was often asked, “Well, why didn’t you go to the police immediately?” We know that that is not a good argument when it comes to serious offences such as rape, which can take days, months or years for people to report. The point I am seeking to make is that there has to be some complaint procedure in the end.

Proposed sub-paragraph (10)(k) in amendment 74 uses the term

“other well-founded documentary evidence of abuse”.

I know it is difficult to choose a precise phrase that sums up what the amendment’s proposers would regard as a sound basis of fact, but that term is open to too much interpretation when it comes to determinations on the granting of legal aid.

I think the proposers of the amendment are perhaps on sounder ground in proposed sub-paragraph (10)(h), which mentions

“an undertaking given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse”.

If there is any criticism to be made of that, it is that it is perhaps drafted a little too precisely. Many undertakings given to courts in relation to domestic abuse include not just non-approach but other prohibitions as to particular conduct, contact and other aspects of the mischief that is the subject of the proceedings.

It is important that we consider the particulars of the matter, because when parties come to court with a claim relating to domestic abuse, there is quite rightly an impetus for compromise. The parties represented by solicitors or counsel rightly see whether proceedings in the form of evidence given and tested before a judge can be avoided by undertakings being given. “Undertakings” is a legal word for promises given by one or other party as to future conduct. In fact, in many cases both parties make promises not to behave in such a way as to cause future strife. That is laudable, and it has been the practice in the civil courts for many years. It saves court time, it saves victims of domestic abuse from having to undergo the trauma of giving evidence, and it looks to the future by trying to draw a line under the sins of the past with regard to the conduct of people who have been in a relationship involving domestic violence.

Let us put ourselves in the position of a solicitor or legal adviser who has to advise a party to such proceedings before any decision is made about the giving of undertakings. I see a problem occurring, because if undertakings are not to qualify for the purposes of obtaining future legal aid in domestic violence cases, solicitors will have to advise their clients that that could be the case. In other words, they will have to warn their clients that, if they accept undertakings, that could prejudice any future claim for legal aid.

That worries me, for two reasons. First, it could provide a perverse incentive for more litigation, which could result in fewer undertakings being given and a concomitant loss of court time and increase in expenditure. Secondly, it would place legal advisers in a very difficult position when it came to the giving of proper advice. Solicitors or barristers should be there to give advice based on the evidence in the case, rather than on any future contingency that may or may not occur.

Could there not be a way through that problem by parties in the case, through their legal representatives, inviting the judge who presides over the proceedings to indicate his or her view of the strength of the evidence? If there were an injunction in which the parties were minded to accept undertakings, the judge might say, “In this particular case I think there was very strong evidence that could have supported the granting of an injunction.” The legal representatives could then use that if there were any future domestic abuse leading to a legal aid application. I urge the Government to consider that potential solution to the problem, as I believe it could help not only the parties in a case but those who advise them legally.

This debate should not be about whether one party or another is sound on domestic abuse. The truth is that there is a welcome and proper consensus about the seriousness of the incidence of domestic abuse in our society. Politicians, the police and all agencies are determined to stamp it out, intervene prior to violence taking place and deal with the root causes of why one partner in a relationship should choose to abuse the other, whether emotionally, financially, physically or otherwise. This debate is not about whether or not we believe domestic violence is a problem; rather, it is about how the criteria are set. It is therefore a rather narrow debate, and it deserves more mature reflection than some Opposition Members have thus far given it. [Interruption.] I am sorry that Opposition Members do not consider 20 years of experience of actually dealing with domestic violence cases to be important, because I would like to think that those of us who have dealt with victims of domestic violence have a contribution to make, and I bitterly resent any Opposition suggestion—especially in sedentary interventions—that I am deliberately prolonging these proceedings. I am not doing so, and if that accusation is repeated, I shall raise a point of order.

Photo of Glenda Jackson Glenda Jackson Labour, Hampstead and Kilburn 7:30 pm, 31st October 2011

In the hon. Gentleman’s argument—and, more centrally, in the Government’s argument—no consideration is given to the possible consequence that what I regard as a crime may lose that classification of criminality, depending on whether the sufferer is or is not granted legal aid. Surely that is a very dangerous road for us to go down.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am, as always, grateful to the hon. Lady because she makes measured contributions, and I shall respond to her point. A distinction must be drawn between the scenario in question, which is a civil legal aid scenario, and the concern that she expresses about the potential decriminalisation of what I agree is a serious crime. The tests are different; as the hon. Lady knows, the evidential tests are different, and, if anything, the evidential hurdle would be higher in the criminal scenario.

I have some sympathy with those Opposition Members who said that a uniform definition of domestic violence, not just in the legal context but across the whole activity of Government, would be welcome and a step forward. The Association of Chief Police Officers definition is largely sound, although I do have one criticism of it: it does not mention children. Domestic violence can, of course, be directed towards, or be conducted in the presence of, children. The restriction to adults alone is therefore perhaps a deficiency, and all of us, as legislators and campaigners, should reconsider that.

Photo of Mark Menzies Mark Menzies Conservative, Fylde

It is important that we do not think of this issue only in terms of the relationship between a husband and wife, because domestic abuse can also occur in other circumstances, such as where people take in an elderly parent. That may seem a good idea at the time, but subsequently events might take a different turn and the elderly parent may therefore also become a victim of abuse.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

Order. The hon. Gentleman has only recently entered the Chamber, and he ought not to have intervened so soon. It is, of course, up to Mr Buckland to decide if and when to take interventions, but may I remind Members that they ought to make sure they have been in the Chamber for some considerable time before seeking to make interventions?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to my hon. Friend for making the point about elder abuse. It often occurs in a domestic scenario, and we, as policy makers, should also consider it when setting out a unified cross-Government definition of domestic violence.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Earlier, the hon. Gentleman made the valid point that in the past the police did not take domestic violence seriously. Does he agree that there is currently a problem in that the police often do not take elder abuse seriously, and often avoid getting seriously involved in such cases because it is not a specific crime?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

The hon. Gentleman is right, and I am sure that he will have come across appalling instances of the mistreatment of relatives when reading the contents of his mailbag and inbox—as, indeed, we all have. In that scenario, the police often face the same difficulty that confronts them when dealing with cases involving vulnerable, and often young, women who are the victims of domestic violence: the complainants—the victims—are often not in a position to provide clear evidence. Because of their vulnerability or their age, they are seen as a soft target who might crumble if put under pressure in court. That is why it is incumbent upon all of us to consider different mechanisms in which their particular vulnerabilities can be accommodated so that the truth will out.

Photo of Sheila Gilmore Sheila Gilmore Labour, Edinburgh East

I would like to know where the hon. Gentleman’s speech is going. This debate is about the fact that legal aid is being withdrawn for family actions except in very limited circumstances where there is domestic abuse. Fascinating though this discussion of elder abuse is, I do not understand where we are heading.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am sorry the hon. Lady takes that view. I listened to her speech very carefully, and I was glad that she eventually returned to the topic under discussion because, with respect, I must say that at one point she was addressing an entirely different scenario. That may still exist in the imaginations of some Opposition Members, but it has largely disappeared from the imaginations of the occupants of the Government Benches, on which there is consensus among the parties.

I make no apology for dwelling at length on this issue. It deserves careful consideration at this stage of our deliberations on the Bill, and I would like their lordships to ponder what has been said about it. I therefore bitterly resent the suggestion that I am deliberately padding out my remarks.

This issue should be addressed by Ministers not only at the Ministry of Justice, but at all other Departments with a direct role in domestic policy—such as the Department of Health and the Cabinet Office. They must all think very carefully about the benefits of a unified definition of domestic abuse and what that can bring, not only to the workings of Government but to all victims and potential victims. Unless we get a grip on the root causes of this problem, the House will return to it year after year, and there will be not only constituency examples to ponder, but a general and depressing pattern of abuse in the home.

I have carefully considered Opposition amendment 74 and, as I have said, it is not without merit, but although it has been drafted carefully in some respects, it does still leave the potential for mischief, which we must avoid when addressing the granting of public funds.

I am sure the Minister has listened carefully to what has been said on both sides of the House, and that he will go away and consider the important points that have been raised. None of us wants to see a scenario whereby genuine victims of domestic abuse lose out and end up being exposed to situations such as those outlined by Members both in this debate and in Committee.

These issues should not be the subject of political knockabout because they involve real people who have suffered real harm, and who continue to be at risk. It is for those reasons that I have played what I hope has been a constructive part in this debate.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

As ever, it is difficult to disagree with even a scintilla of what my hon. Friend Mr Buckland has said. As in Committee, we have had a constructive debate on this subject, and especially so on this occasion as so many contributors on both sides of the House with experience of dealing with domestic violence issues have spoken.

I am perfectly happy to concede that my experience and understanding of the issue under discussion is very limited, but ever since becoming a Member of Parliament in 2010, shocking case after shocking case has been laid before me in my surgery, and I have seen the work done by the various institutions in my

constituency that deal with domestic violence. I was not a specialist in this area before, nor would I be able to lecture some on the Opposition Benches on it, so the intervention by Sheila Gilmore was particularly important in saying that we had come a long distance on how the police and agencies deal with domestic violence, and it is important that we do nothing to retard that.

With that in mind, I find it surprising that the tone of some contributions would suggest that on this issue there was division along political lines—one Bench against another. My hon. Friend Anna Soubry, who cannot be here today because she is in hospital, has campaigned against domestic violence, especially violence against women, for many years. My hon. Friend Mr Buckland has not only sat on the bench recently dealing with cases where domestic violence had been an issue in the criminal court, but prosecuted and defended on that matter. It therefore behoves hon. Members, particularly some on the Opposition Front Bench, not to shout and hurl insults at Conservative Members who wish to give a detailed and reasoned explanation of their views, and not to suggest that there is political division between us on the matter of domestic violence.

I remind Labour Members that the Government are going to produce a comprehensive strategy on tackling domestic violence shortly. I look forward to seeing it and I hope that it will draw together the various threads that we have heard about in today’s debate. That needs to happen because one part of government does not speak to another, just as parts of local government and the local police force do not speak to one another, as all of us will have found locally time and again.

One example will suffice in that regard. It concerns the most horrendous attack on a constituent whose husband had been released from prison on licence. Even though there was a multi-agency public protection arrangement—MAPPA—protocol set up around this gentleman, the attack was revealed only because of a revelation made by the six-year-old child of my constituent in their primary school. The school had never been involved in the MAPPA discussions about this offender, even though, had it been, the abuse would have been identified some weeks beforehand. I hope in highlighting this to say that the impression that we can solve the problem of domestic violence via legal aid and the courts —I know that this was not all Members, but the impression was given—is fundamentally misconceived.

We will deal with this problem—this will be a very long haul—only if we take a cross-governmental approach, and not one led by what happens when things get to court, let alone when they get half way through. Helen Goodman correctly said that women who report to the police have typically had 20 incidents of assault prior to that moment. We need to deal with things before then. The suggestion that we must be able to solve all this in the definition of the domestic violence protocols within this legislation—

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Is not the issue whether the victims can have access to the solution? This is not about the state or the Government solving it. For many victims, it is only through getting legal aid in order to get an injunction or similar that they can solve the violence they face.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

Again, the hon. Lady speaks with far more experience than I on this matter, and I was getting to her point. I am merely suggesting that the idea that we can address all these problems of domestic violence through an overheated politicised discussion about where the Government are heading on this Bill not only misses the point, but will damage the cause at hand.

On amendment 74, which was tabled by the shadow Minister, I return to the point I made in my intervention. I regret the fact that he said that I was being pernickety, because many of the things that he is driving at have reason and substance behind them. However, there is a problem if we include, within a list of organisations that would help women to report, a general definition of

“a domestic violence support organisation” without providing clarification about the efficacy of that organisation.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

The hon. Gentleman clearly was not listening when my hon. Friend Kate Green pointed out that that definition is perfectly acceptable to the UK Border Agency, as are the others. It is a composite of definitions acceptable to Departments, so that is a rogue point. May I add that he is doing no service to this House by padding out this debate, as Mr Buckland did, when we have several other serious debates to come? If the Conservatives are afraid to debate social welfare legal aid, they should say so. Otherwise he should get on with it and allow the House to debate these important amendments tonight.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich 7:45 pm, 31st October 2011

Again, I regret what the shadow Minister has said. On several occasions, I have sat through three hours of speeches from him in Committee—

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

That was one speech. On several occasions, we had three-hour speeches where points were recycled and regurgitated without use to the legislative process. It is unfortunate that the hon. Gentleman claims that I am padding things out, as I hope that I am addressing points not yet raised in this Chamber. I am going to do so briefly. I feel I should do so, as although I am happy to admit that I am not someone from a legal background and that I do not have a previous interest in this area of domestic violence, I have the experience of sitting in the Public Bill Committee and understanding the arguments put both by the Opposition and the Government in this difficult area. I speak as a layman and I hope to offer my support to points made by Members on both sides of the House.

On amendment 113, tabled by Caroline Lucas, we face a small issue about whether people from the European economic area are caught within this legislation. It will cover only a small handful of people, but the inevitable consequence of missing it out—if that happens—is that there will be some travesty and miscarriage of justice precisely in a case where someone falls through the gap. I hope that the Government will carefully examine that suggestion in the first half of the amendment.

I also fully support what my hon. Friend the Member for South Swindon said about undertakings. I have heard much evidence from people practising in this field who give a reasonable argument that a counter-productive eventuality of this Bill is that, if undertakings are excluded, it could end up greatly prolonging cases, and not only to the detriment of litigants: it would also affect the costs of the court. I hope that his constructive and sensible suggestions, which come with considerable experience of sitting on the bench and acting as counsel, will be taken up by the Government as the fair-minded suggestions that they are.

More broadly, we have a problem on self-reporting. I hope that hon. Members, especially Labour Members, will bear me out on this. Anyone who has contact with the family courts and who talks to family judges will know about the impact that allegations of child abuse have had in private law cases. In the opinion of many counsel and judges, in the past few years, allegations of child abuse have increasingly been made far too readily when no substance is behind the claims. It would be unfortunate if, under the new regime, allegations of domestic abuse and domestic violence were made as a precept to gain legal aid, because that would devalue the claims other people make completely legitimately. That is what is happening in the courts at the moment with allegations of child abuse. Several judges have remarked to me that so often is it claimed that one party or another has committed child abuse, it is beginning to numb the senses of the judges hearing those cases. It would be wrong if a similar situation were to arise with this new regime. The Government must therefore phrase the definition of domestic violence very carefully.

I hope that the Government have heard the concerns of Opposition and Government Members, such as those of my hon. Friend the Member for South Swindon, those that my hon. Friend the Member for Broxtowe has voiced on several occasions, and those raised today by my hon. Friend Mrs Grant. I can hear from the way in which the Minister has been replying that he understands that some sort of uniformity would be desirable across government and that some recognition of the problems of encapsulating a definition within the Bill will be made here or in another place.

The Opposition went into the last election saying that they would seek cuts to legal aid and that promise has been reiterated both by the Leader of the Opposition, in January, and the shadow Secretary of State, who is sitting on the Front Bench, on several occasions. However, in Committee, the shadow Minister tabled dozens of amendments, some of which were, by his own admission, contradictory and many of which were culled from the handouts given by lobbyists, which extended considerably the Committee’s deliberations when we could have been discussing the meat of the proposals as we have tried to do today. He came to the House with a new amendment having denied the Public Bill Committee the ability to consider properly many of the issues that we should have discussed.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

As ever, I am pleased by the right hon. Gentleman’s intervention because he highlights an inconsistency in the Opposition’s argument. They cannot say on the one hand that the Government are not listening and that the legislative process does not work—he said earlier that the pre-legislative system was not working—but on the other, when amendments are made, that the Government are either committing a U-turn or not listening. I do not understand how the Opposition and the right hon. Gentleman can reconcile those two statements.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

The hon. Gentleman was waxing lyrical about the absence of time to discuss Opposition amendments, but his party is equally to blame in that we have not even had sight of their amendments. At least the Opposition amendments were available to be seen before today; we have not even seen the amendments that are the subject of today’s announcement. That is the point I am making.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

The right hon. Gentleman misses my point about the Public Bill Committee. There are many issues that needed to be raised that we could have fleshed out at greater length, but the Opposition tabled so many specious amendments, many of which were completely contradictory—largely in the name of the shadow Minister, not that of Kate Green, who is shaking her head—that we did not get to the meat of some of the issues in the amendment we are debating. Had we been able to discuss sub-paragraph (10)(j) of amendment 74, which the shadow Minister has tabled, we might have been able to improve the Opposition’s amendment so that it could be acceptable to both sides of the House. Instead, we have an amendment that was tabled a couple of days ago with aspects that clearly would not hold up to further legislative scrutiny. It is a pity that we did not have that discussion in Committee instead of discussing a series of amendments, some of which I doubt the shadow Minister had even read before he started speaking to them.

Putting all that aside, a principal issue for me is that many of the amendments tabled by the shadow Minister in Committee would have committed his party to spending increases costing £245 million, but whenever I or other members asked whether the Opposition had any alternative spending plans, they told us to look at the Law Society’s plans. Unfortunately, the Law Society has had to revise its plans, which were found wanting.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

What does this have to do with the debate?

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

I am just coming to that if the hon. Gentleman will listen.

When they table amendments, the Opposition have a duty to explain how their changes would be paid for and what balances would be made elsewhere in the Bill, but so far we have had nothing to substantiate how they would do that, and neither do we have any idea how their changes would fit into the general pattern of the Bill. I cannot therefore vote for their amendment or that of the hon. Member for Brighton, Pavilion—amendment 113 —as neither is complete and nor have they been properly discussed.

In conclusion, I hope that we can continue our proceedings without trying to politicise the issue of domestic violence. I hope we can discuss the precise provisions in the Bill without throwing what I feel have been intemperate and sometimes misjudged accusations at one side purely because they happen to disagree with the assertions put by the other.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

First, let me confirm to my hon. Friend Mr Buckland and other hon. Members that I have listened carefully to the debate, which has been informed and varied. A significant number of general and more specific issues have come up in our deliberations. I agree with my hon. Friend Ben Gummer that the debate has, in some ways, become too polarised given the significant agreement and consensus among all hon. Members about the need to counter domestic violence.

Given the number of issues to address, it is hard to know where to start, but I shall begin with the definition of abuse, which was mentioned by Mr Llwyd and the hon. Members for Stretford and Urmston (Kate Green), for Brighton, Pavilion (Caroline Lucas) and for Bishop Auckland (Helen Goodman). The accusation is that the definition of abuse in the Bill narrows the scope of legal aid in comparison with ACPO’s definition. The right hon. Gentleman said that the Bill weakened the definition of abuse. I can confirm to the hon. Member for Brighton, Pavilion that the definition in the Bill does not require physical abuse. Both the ACPO definition and the Bill definition are very broad and embrace abuse that is not physical, and it is difficult to see what description of behaviour in the ACPO definition would not be covered by the broad description of physical or mental abuse used in the Bill.

The right hon. Gentleman suggested that I said in Committee that to widen the definition of domestic violence would induce self-reporting. As I think my hon. Friend the Member for Ipswich was heading towards saying, that confuses the definition of abuse, which determines scope, and the criteria for an individual to qualify. The definition of abuse in the Bill is broad and it is difficult to see how it does not cover that which is covered by the ACPO definition. Neither definition says anything about how abuse is to be evidenced.

My hon. Friend the Member for South Swindon injected a sense of balance into the debate and I noted his condemnation of archaic and unacceptable language. I think we can all agree on that.

The right hon. Gentleman spoke about the Bill and ACPO definitions of domestic violence. To put an end to this issue, let me say that if any right hon. or hon. Member can write to me with a specific, concrete example of abuse that would be covered by the ACPO definition but not by the definition in the Bill I will give the issue serious consideration.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I am not going to give the Minister an example of that. If he is so sure that there is such an overlap, why not use the ACPO definition?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I look forward to the hon. Lady providing her reasons why that should be the case.

The right hon. Gentleman made a significant number of points for his significant number of amendments, most of which I covered in my preliminary remarks, and I do not intend to go over them all again. However, he mentioned two particular points that I did not cover, so if he does not mind I will concentrate on those.

It is not clear that amendments 92 or 93 would widen the category of services described in paragraph 10 significantly or at all. The definition of abuse used in the Bill is intentionally broad and not limited to physical violence, but it embraces physical or mental abuse. Abuse is stated to include sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation, but it is not limited to those examples. Therefore, we believe that it is sufficiently flexible to cover cases of genuine abuse, as is the intention. Both amendments refer to physical and mental abuse, which are already explicitly referred to in the Bill’s definition. Additionally, they refer to threatening behaviour, violence and emotional abuse, which are clearly within the scope of physical and mental abuse and so are unnecessary and add nothing to the breadth of the category.

Further reference is made to financial abuse. It is not entirely clear what that would cover outside the context of serious cases where the treatment of one party by the other in relation to the family finances amounts to physical or, in particular, mental abuse, which would include neglect, maltreatment and exploitation in the Bill’s definition, where it is clearly within the definition of abuse in the Bill. Where the financial abuse does not amount to or form part of physical or mental abuse, it could be argued that the amendment would widen the gateway beyond what might be ordinarily understood as abusive behaviour, but in a way where the effect is unclear. For instance, there is no special reference to financial abuse in the provisions of the Family Law Act 1996 to protect against domestic violence or in case law, in contrast to emotional or psychological abuse, so it is questionable what it would add in this regard.

However, the amendment also stipulates that any incident of abuse would suffice to come within the category. On one construction, that would make no difference since the existing definition does not require a course of conduct, but on another construction it might be argued that the explicit reference to any incident could be read as a potential fetter on the power to define what would be accepted as sufficient evidence of abuse through secondary legislation. That is because the type of evidence acceptable will reflect a certain degree of seriousness. For instance, a family court will not generally make orders relating to minor, one-off incidents, although it will do so in appropriate circumstances, such as a course of conduct of trivial incidents adding up to something more serious.

It is not clear that any challenge to secondary legislation requiring forms of evidence that in themselves are unlikely to arise from minor, single incidents would have any prospect of success, but the risk cannot be entirely ruled out. Were it impossible to prescribe the forms of evidence proposed to date, we estimate that the consequent opening up of eligibility would at the very least double the cost of the domestic violence gateway to £130 million per annum.

The part of amendment 23 that refers to violence or abuse

“between adults who are or have been intimate partners or family members, regardless of gender or sexuality” is superfluous, since it duplicates the effect of paragraph 10(7), which sets out that for the purposes of the paragraph there is a family relationship between two people if they are associated with each other. That “associated” has the same meaning as set out in part 4 of the 1996 Act. In part 4 of that Act, “associated” is defined very widely and covers a range of relationships no less wide, and in some instances wider, than the ACPO definition.

Amendment 93 would widen the domestic violence gateway so that legal aid would be available for the potential victim in private family law cases where there has been an as yet unproven allegation of abuse, or of the risk of abuse. It would make the gateway extremely wide and, in effect, would mean that self-reporting would have to be accepted as sufficient evidence of domestic violence, making any other evidentiary requirements redundant. It would be difficult to limit very far the forms of evidence of an allegation of abuse, or of the risk of abuse, that would be accepted. We estimate that that would at the very least double the cost of the domestic violence gateway to £130 million per annum.

The amendment refers to allegations that person B has been abused by person A. In paragraph 10 of schedule 1, it is person A who is the victim, and person B who is the abuser—the other way around. However, the amendment does not change the opening proposition, which is that the services are provided to person A. This appears to have the perverse consequence that if the proven abuser, person B, alleges that the proven victim, person A, was the abuser, person A would qualify more easily for legal aid since they would then have to give as evidence only an allegation by person B of abuse or the risk of abuse. That is almost certainly a drafting error, but if it is not, and the intention is instead to ensure that legal aid would be available where either party might be the victim of abuse, that would be unnecessary.

In relation to amendment 97, the intended effect is unnecessary because section 37 proceedings are public law matters and it would be possible, in private law proceedings, for a court that is considering a section 37 order to adjourn so that the parents, if they are not already represented, may have access to legal aid and representation under the public law heading. The actual effect is rather wider. However, the amendment would bring the whole of family proceedings, such as proceedings for residence and contact with children, into scope where the court considers making a section 37 direction, rather than simply consideration of that point. Again, this may be a matter of defective drafting, but if so the entire amendment would be superfluous.

The right hon. Gentleman also asked whether an adjournment would introduce a delay in protecting a child. We would expect a court to adjourn a hearing only if it considered it safe to do so. The only way to avoid the potential for a section 37 direction to be made at a hearing involving unrepresented parents would be by providing legal aid for all private law children cases, which we believe would be a disproportionate response. There is already the potential for section 37 directions to be made in cases involving litigants in person under the present system, but as I have said, legal aid is available and will be in future to challenge such a direction.

A significant number of comments were made in relation to amendment 74. Mr Slaughter indicated that he will want to press it to a Division, so I will spend some time on it. I agree that it is an important matter. He said that he understands our intent. Does he understand that we need to have savings in legal aid? I am not sure what he meant when he said that he understands our intent—

[

Interruption.

]

He says that he will address that in a later debate, but I think that it is quite an important issue. In contrast to what he said, his right hon. Friend the shadow Secretary of State recognised in an article published only this morning that

“cuts need to be made”.

Looking at the amendments tabled by Opposition Members, I cannot see where those cuts will be made. We have had a little look at what they are proposing. The estimated costs of the Opposition amendments are: £20 million in debt matters, £5 million in employment matters, £15 million in housing matters, £25 million in welfare benefits matters, £10 million in clinical negligence matters and £170 million in family law matters. The total is £245 million. The taxpayer deserves to know where the money for that will come from.

Let me address the actual effect of amendment 74. To set out in the Bill the circumstances as specified in the amendment that should be accepted as evidence of domestic violence for the purposes of legal aid for the victim in a private family law case would mean that those circumstances, but not those that the Government intend to accept as evidence of domestic violence, would be set out in primary legislation. The Government would therefore have no power at all to amend those circumstances through secondary legislation. They would be in addition to any circumstances set out in secondary legislation for providing appropriate evidence of abuse. We expect that significantly more cases would receive funding if the circumstances set out in either amendment were accepted as evidence. Sheila Gilmore and others mentioned their concern about the issue of incentives for false allegations of domestic violence, but we received a significant number of responses to the consultation which expressed concern that there might be a rise in unfounded allegations of domestic violence, and the respondents expressing such concerns included the Law Society and the Bar Council.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

The hon. Gentleman is concerned that there might be a rise in unfounded allegations of domestic violence, but does he accept that if his proposals go through there will be an increase in the number of women who are victims of domestic violence and unable to access legal aid?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

No. Our proposals are aimed at ensuring that those who are subjected to domestic violence are those who are kept within the scope of legal aid.

Many hon. Members have said, “Shouldn’t any incident of abuse trigger legal aid?” Some have said that we should limit it, and the hon. Member for Hammersmith has put in certain but, given his amendment, not very many limitations. The hon. Member for Edinburgh East accused me of being obsessed with false claims. I am not, but we need to appreciate that such a provision would have serious financial consequences, as it would lead to funding in cases in which the abusive behaviour, although unacceptable, might be very marginal.

Clearly, a single incident of abuse can be very serious, but a single one-off incident of non-physical abuse, such as angry and upsetting words spoken during an argument, can be relatively minor, because they have no real effect on the victim’s ultimate ability to face the other party in proceedings.

On amendment 74, specifically, my hon. Friend the Member for South Swindon, my right hon. Friend Tom Brake and my hon. Friends the Members for Ipswich and for Maidstone and The Weald (Mrs Grant) asked whether we would accept undertakings given in civil proceedings as evidence of domestic violence, and I will look at that issue further. The Government’s current position is that a person can give an undertaking, for instance not to be violent towards family members, without admitting to domestic violence, meaning that undertakings may be given in cases where domestic violence has not taken place. We do not think that undertakings would provide sufficiently clear objective evidence that domestic violence has occurred, but we shall look into that further.

My hon. Friend the Member for Maidstone and The Weald also asked whether the fact that the definition of abuse is not specific will make its use more difficult in court, but the definition in the Bill will not be used in proceedings for domestic violence orders under the Family Law Act 1996. There is no definition at all of domestic violence in the 1996 Act, but the courts have experienced no difficulties, so neither the Bill’s definition nor the ACPO definition will be used in such proceedings.

The hon. Member for Hammersmith discussed a finding of fact in a family law court, and he asked how people would get legal aid in that context. They will not get legal aid to bring the case, as legal aid will be triggered only when the court has made a finding of fact, but an applicant will be able to submit written evidence of any abuse if relevant to proceedings, and a judge will be able to intervene to prevent inappropriate questioning.

Several hon. Members, including the hon. Gentleman, made a series of points about the specifics of amendment 74, so let me deal with those, including what would be accepted from various people as evidence in order to qualify for domestic violence. Accepting police cautions would be inconsistent with our proposal to include in the criteria “criminal convictions unless that conviction is spent”, as simple cautions are not convictions and become spent immediately.

A harassment warning is notice that a complaint has been received by the police; it is not considered to be proof that an offence has occurred, and police are not obliged to investigate the allegation. We therefore do not consider that harassment warnings would provide sufficiently clear objective evidence that domestic violence has occurred.

On police investigations or call-outs, we do not consider that an investigation by the police or the police having been called out would provide sufficiently clear objective evidence that domestic violence has occurred. The call-out or the investigation could be inconclusive, or the police might determine that domestic violence has not taken place, but any such evidence could be taken into account by a court when assessing whether abuse has occurred, and if it goes on to make an injunction or a finding of fact that it has, and the victim is at risk, legal aid will be available, so all those sources of evidence could be factors in triggering legal aid, even if not they are sufficient in and of themselves.

The hon. Member for Bishop Auckland discussed whether we should accept admission to a refuge, and other hon. Members might have made the point as well, but we are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting and to place pressure on those organisations that provide refuges. Their assistance might be sought with greater frequency if they had a role in triggering access to legal aid.

The hon. Member for Hammersmith and others asked whether we would accept evidence from medical professionals, but we are not convinced that they would be best placed to assess whether domestic violence has occurred. They might witness injuries, but it might be difficult for them to determine how they had occurred, and again there would be strong elements of self-reporting, rather than objective evidence. Evidence from medical professionals could, however, depending on the circumstances and on a judge’s assessment, lead in the family courts to a finding of fact that domestic violence has occurred, and that would trigger funding.

Another hon. Member asked whether victims of domestic violence and their children could be cross-examined by the perpetrator, but judges have the powers and the training to manage the situation and to ensure that it is handled sensitively for the person giving evidence. For example, judges can have questions relayed to witnesses, rather than asked directly; they can use video-links; and they can intervene to prevent inappropriate questions. Under the current legal aid system, that is often the case and often has to happen.

The hon. Member for Hammersmith stated that only a minority of women apply to the courts for a protective injunction against domestic violence, because, for instance, they do not trust the judicial system, so they will not get legal aid. Domestic violence is of course a very serious issue, and of course victims need support in all sorts of ways, but there is a distinction between all victims of domestic violence and those who seek to take legal action in the family courts in relation to child contact or financial issues. Such women are prepared to go to court, and they may well be more likely to apply for an injunction.

The right hon. Member for Dwyfor Meirionnydd and others suggested that, for the Government, money comes before safety, but that is entirely rejected. Yes, we do have to make savings from a legal aid system that costs this country £2.2 billion a year, and we are proposing £350 million of savings during this savings period, but we will spend an estimated £120 million a year on private family law, including domestic violence, after the changes. As I said earlier, this includes funding for about a quarter of the private family law cases that currently receive legal aid.

I think it was the hon. Member for Hammersmith who said that women would often not do anything about domestic violence for fear of jeopardising their immigration status. I made some remarks about this earlier, and I shall not repeat them, but those are the cases that we are going to bring back into scope through Government amendments 59 and 63.

My right hon. Friend Simon Hughes said that 61% of immigration appeals were successful, and that that demonstrated a need for legal aid for such cases. However, most appeals are factual and are not brought on points of law. I said to him earlier that I would consider further the question of complex cases, and I will come back to him on that.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee 8:15 pm, 31st October 2011

What that 61% success rate on appeal demonstrates is a bad decision-making system. Ought not the Minister to be more sympathetic to the Justice Committee’s view that Departments that make their decisions so badly as to generate large numbers of successful appeals should be penalised, perhaps even to the extent of contributing to a fund for the advice agencies that help the people who are affected?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of something like 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.

Caroline Lucas talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.

My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.

A number of hon. Members asked how we could justify plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.

The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would have the effect of removing access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. Also, in ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Also, removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.

Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.

Amendment 10 agreed to.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

With this it will be convenient to discuss the following: Amendment 85, page 110, line 18, leave out ‘other than clinical negligence’.

Amendment 143, page 110, line 18, leave out ‘other than’ and insert ‘including’.

Amendment 86, page 110, leave out lines 28 to 30.

Amendment 142, page 110, line 32, at end insert—

19A (1) civil legal services provided in relation to Clinical Negligence.

(2) In this paragraph clinical negligence means breach of duty or care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services)’.

Amendment 88, page 111, line 4, leave out ‘other than’ and insert ‘including’.

Amendment 132, page 118, line 27, after ‘negligence’, insert

‘with the exception of clinical negligence’.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I will be brief, because other hon. Members wish to speak and, crucially, we need to get to the social justice provisions. The purpose of amendment 80 is to bring clinical negligence back within scope in cases involving abuse of a child or a vulnerable adult. Amendment 88 is designed to retain specific provision for tort and damages claims engaging European convention rights, and extending provision to cases involving clinical negligence. Amendments 85 and 86 are consequential, and cover the abuse of a position of power by a public authority. They would specifically provide for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context.

Taken together, the amendments reflect my concern, which I know is shared by many hon. Members, about the huge gaps in protection of the vulnerable that will come about as result of implementation of the exceptions to funding by legal aid. What is perhaps most concerning in such instances is that individuals will come up against the state during proceedings. People involved in cases of clinical negligence by a public authority are, by definition, at their most destitute. Frequently, parents or other family members will bring cases against public authorities resulting from traumatic injuries sustained by their children and their relatives.

As Yvonne Fovargue said in Committee:

“the inequality of arms is never more obvious than when an individual comes up against a decision made by the state”.––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 7 September 2011; c. 327.]

That is because the state will always have access to full and expert legal advice, and will often have a team of lawyers at their ready disposal. That is even more ironic when we consider the stark fact that the state should have a responsibility to ensure that every individual has the means to hold it to account. I said that on Second Reading, and I do so again. In the reforms, the Government seem to have lost sight of that all-important state duty to support the vulnerable, as well as to protect them.

The Minister said in Committee that there is often a viable source of alternative funding for cases of clinical negligence through contingency fee arrangements. That sounds all right, but is not as simple as it sounds. What about the people who, on entering into such an arrangement with solicitors, would not be able to afford a policy to cover them for the initial necessary medical examinations? I know that some ground has been given on that, but I would be grateful to hear more. For many parents, for example, contingency fees cannot be the answer since they do not have the money up front to buy a policy to provide cover when making an arrangement with solicitors. Indeed, very few firms would take on a clinical negligence case on a no win, no fee basis because of the complexity and specialism involved in this area of civil law.

The Government seem content to find fault with solicitors in this matter. Indeed, they seem almost to assume that lawyers tend to drag things out in proceedings.

I can assure this House that it is quite the reverse. In my experience of litigating against health authorities, they are among the most unco-operative bodies one will ever encounter. Often, they withdraw or even hide evidence until the very last minute, and deliberately obfuscate. Individuals finding themselves litigating in person against these authorities are in a dead-loss situation.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 8:30 pm, 31st October 2011

The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?

Photo of Karl Turner Karl Turner Labour, Kingston upon Hull East

Does the hon. Gentleman agree that it is often the public policy of these authorities—certainly, in my experience, the national health service—to delay? I could not provide any examples either, but in my experience, they do delay.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [ Interruption. ] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.

Photo of Stephen Barclay Stephen Barclay Conservative, North East Cambridgeshire

If it is a management issue, then that, as we have seen in the Public Accounts Committee, goes to the issue of accountability and governing structure. Should not the hon. Gentleman therefore be focusing his remarks on how those issues are tackled rather than trying to perpetuate an ever-increasing legal aid bill, which amounts to fixing the symptoms of the problem rather than addressing its cause?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

If the hon. Gentleman will bear with me, I will go back to my script; he may be interested to hear this part because it deals with the point that he rightly makes. If there were a duty on responsible bodies such as health authorities immediately to come clean with evidence, there would probably have been no need for these amendments because we would not be in the position that we are in. Side by side, on a parallel basis, we need to ensure that all health authorities, and any public bodies, are responsible in their dealings with the public; that goes without saying.

There are about 1 million adverse occurrences or accidents in the NHS every year, and about 10,000 lead to action being taken against the NHS. It is, therefore, a big area of law. In the earlier debate, the point was made that 66% of immigration appeals succeed because the initial decision was bad. In this instance, there would be far fewer long, drawn-out cases if all health authorities and public bodies were under a duty to disclose fully and urgently, and there would not be the astronomical costs that some of these cases result in.

Photo of Stephen Barclay Stephen Barclay Conservative, North East Cambridgeshire

The right hon. Gentleman’s remarks are addressing supply, not demand. He is not addressing why there are so many clinical negligence cases, nor why the insurance that is charged is going up exponentially. There are existing rules for special severance payments for whistleblowers but, as was found in the National Audit Office’s report in 2005 and the Public Accounts Committee’s recommendations in 2006, there is still a problem in the way that whistleblowers are tackled in the NHS and in the way that such cases are dragged out. That is a failure of the previous Government. It is to that failure that he should address his remarks; not to the fact that we continue to fix a problem that is growing exponentially year on year.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

The number of cases each year because of accidents or negligence has not really increased. It has been around the 10,000 mark for many years. There has not been a sudden rise in specious claims in this area. This is not a growing market. I hear what the hon. Gentleman says and I agree that we should ensure that there is far better practice.

Such cases are capable of being resolved far earlier and without recourse to litigation. Medium-sized cases are often resolved by the hospital or health authority without resorting to litigation, and that is fine. However, in large cases, such as where a child is brain-damaged at birth, there is no appetite from either side to settle it in the hospital. Such cases are often extremely expensive because the child’s life has been ruined for their entire existence. That is why I raise these matters.

I hope that Karl Turner will make a contribution because I know that he, too, has been campaigning on this issue. I will confine my remarks to those few points.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I rise to make a few brief comments, particularly in relation to amendment 132, which appears in my name.

I have been ably supported by Action against Medical Accidents, which campaigns on the issue of clinical negligence and for a statutory duty of candour in relation to accidents in the NHS. If there was a statutory duty to confirm, at the outset, that an accident had taken place, it might ensure that many cases involving the NHS, which can drag on for many years, were brought to a much earlier conclusion. If, as was suggested earlier, it is management who get in the way of resolving such cases, they would not be able interfere to the same extent to delay proceedings—if, indeed, that is what they do—if confirmation that an accident had taken place was given at the outset.

I will focus on legal aid representation in relation to medical negligence. I welcome the confirmation we have been given that £6 million or £7 million of the £16 million that is currently spent on legal aid for medical negligence will be retained under the “Exceptional Funding” heading. The sum that is being discussed is therefore in the order of £10 million. Although we have received assurances that exceptional funding will be able to deal with many of the intense cases with which Members are familiar, such as cases of babies who have been seriously injured at birth, the question remains: which cases will not be funded once that £10 million is withdrawn from legal aid for medical negligence cases?

Given that the Government have a significant budget deficit to address and that this measure is part of that programme, I do not want to come empty-handed when it comes to saying where additional funding could come from if the Government were to restore that money. Later on, we will debate amendment 144, which is in my name. It would introduce a presumption against sending people to prison for a prison sentence of six months or less. The organisation that has done the calculations suggests that that could save the Government up to £400 million a year. That might be a slight or even a gross exaggeration of how much money could be saved, but it would be not unrealistic to expect that savings of the order of £10 million are achievable if the Government were to look kindly on that amendment.

Medical negligence is high-profile. It might affect a relatively small number of families, but when it does, it does so dramatically.

Photo of Karl Turner Karl Turner Labour, Kingston upon Hull East

Does the right hon. Gentleman want his amendment to be pressed to a Division?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

My colleagues and I will get used to interventions of that nature, but the hon. Gentleman will not be surprised to hear that I am expecting some reassurance from the Minister that the Government do not have a closed mind. Even if we cannot make progress in the House, there could be opportunities in another place to do so. I am just putting down a marker for the Government that they should entertain that idea.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

As I understand it, amendment 132 relates to medical negligence within the scope of the European convention on human rights, which is excluded from legal aid in the Bill. If it is a probing amendment, will the right hon. Gentleman indicate the sort of cases he has in mind? I cannot envisage a case involving convention rights that would involve medical negligence.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I thank the hon. and learned Gentleman for his intervention, even if he has identified a flaw in my proposal. The funding available for legal aid in cases of medical negligence deals with the serious cases with which Members will be very familiar, such as obstetric accidents. However, I am seeking clarification from the

Minister, because although some of the funding for dealing with such cases will still be available through exceptional funding, some of it will no longer be available. I am seeking confirmation from the Government that all very serious cases will be addressed through the exceptional funding route. I hope it will be possible for the Government to identify additional funding to address the funding gap for any remaining cases, as I have done in amendment 144.

Photo of Karl Turner Karl Turner Labour, Kingston upon Hull East

I rise to speak to amendment 142, which is in my name and those of my hon. Friend Mr Slaughter and Mr Llwyd—I think that that is the correct pronunciation of his constituency, but I apologise to him if it is not.

The amendment would put clinical negligence back into the scope for legal aid. The Bill will exclude many important areas of law from the scope of legal aid entirely, all of which deeply concern me.

In my remarks, however, I wish to address specifically the issue of removing clinical negligence from the scope of legal aid, which will restrict access to justice for the very vulnerable, many of whom, no doubt, will reside in my constituency. In my respectful submission, victims of clinical negligence will suffer a double hit in the Bill: not only will they be unable to gain access to legal aid, but they will suffer the prospect of paying potentially crippling legal fees from their hard-fought-for damages. The Government tell us, “That’s not a problem, because conditional fee arrangements offer a safety net to victims of criminal negligence.” I respectfully suggest that that is not the position.

If CFAs were being left with their integrity intact, as the previous Government had intended, I might have had some sympathy with the Government’s argument. CFAs were, if I am right, introduced by the previous Government to ensure that people who did not qualify for legal aid had an opportunity to instruct solicitors on a no win, no fee basis. Solicitors often take on complex and risky cases, knowing that they can claim costs and a success fee from the losing party, but proposed changes will result in victims who win their case paying costly legal fees out of their damages. That cannot be right. Damages are not, as the Government would have us believe, some sort of lottery win. They are paid for damage done to the individual. It is about putting a person who has suffered a loss back into the position they were in before the injury occurred.

That point was summed up well by a criminal negligence lawyer in my constituency. Natalie Simkin is a solicitor for Williamsons solicitors, which is based in Hull city centre and deals with a great deal of these cases. She said:

“People do not choose to be injured and many suffer financial hardship because of their injuries… Is it really fair that they should lose some of their rightful compensation to spare the wrongdoer the full cost of putting things right?”

I agree with her remarks. In Committee, the Minister argued that some clinical cases would continue to receive legal aid funding through the exceptional funding scheme, but he did not bother to explain to the Committee the detail of that scheme. I wonder whether, when he comes to the Dispatch Box, he will explain fully the detail of that scheme. In my view, it will be extremely difficult.

These cases seriously affect the most vulnerable people, including those who cannot afford to instruct solicitors and barristers. It is about the baby who suffers from the negligence of health service professionals, having been left for too long in the birth canal, as happened in a constituency case brought to me recently that has been going on for many, many years. It has involved protracted litigation, arguments to and fro between solicitors and advice from counsel, and it has been going on for about nine years. It involves unbelievably slow, complex and detailed law that people find difficult to comprehend. Some of those people would be left to paddle their own canoes as a result of the Bill. That cannot be right.

Another case from my constituency—a case I have some knowledge of—involved a man who visited his GP’s surgery three times in three days complaining of severe stomach pain. He was prescribed Gaviscon for his intense stomach pain, but collapsed some days later and was rushed to Hull royal infirmary. Having spent some time in the high-dependency unit, he died, leaving three sons. With the help of a litigation friend, those boys were able to seek legal redress. After five years, the case was settled out of court, after much to-ing and fro-ing between solicitors. I know something about that case because it was the case of my own brother, who died as a result of his GP’s medical negligence.

Access to justice is the cornerstone of a modern democratic society, and legal aid provides it for the most vulnerable. It seems bonkers that the Government should accept that self-litigation is likely to result from this Bill—to be honest, I find it shocking. Indeed, in his submissions and contributions in Committee, the Minister offered self-litigation as some sort of remedy. It is unbelievable to say that people can deal with complex cases without the help of solicitors and lawyers. Encouraging self-litigation for clinical negligence cases is economically short-sighted as well. I firmly believe that it will clog up the system; indeed, I think the Judges Council in England and Wales has made that very point.

The Government have ignored all that. The Bar Council made representations to the Government in the consultation, but it, too, has been ignored. Indeed, looking across the Chamber, I see two silks on the Government Back Benches. I do not know this for sure, but I am pretty confident that both will have made representations to the Minister about how they, as experienced practitioners, believe the Bill’s legal aid provisions will affect the justice system, all of which he has ignored. Perhaps the Government ought to consider promoting those Back Benchers to the Front Bench, because I can assure the House that such experienced, eminent members of the Bar would be able to assist them.

I have further concerns about patient safety if clinical negligence cases are removed from the scope of legal aid. Removing the availability of redress must have an impact on patient safety. The vast majority of surgeons, doctors, nurses and dentists do a fantastic job most of the time; but of course, people make mistakes. It would not be right to prevent people from seeking redress when that occurs. I will not stray too far from the amendment, Mr Deputy Speaker, but we have a Government who in my view are effectively privatising the NHS. I served on the Committee considering the Health and Social Care Bill, every clause of which is to do with competition and, in my view, privatising the

NHS. I firmly believe that more and more incidents of clinical negligence will occur as a result of this Government’s agenda.

Lord Jackson did not envisage a two-pronged attack on victims of clinical negligence when he made his recommendations. In this Bill, victims suffer the double whammy of taking legal aid out of scope for clinical negligence cases and making changes to conditional fee arrangements that leave victims footing the legal bills. The cost to the Government of funding clinical negligence cases out of a legal aid budget of £2.2 billion is £17 million—less than 1%. I find it shocking when I look at what the NHS Litigation Authority has said about this matter. It says that it favours keeping clinical negligence within the scope and it stated in response to the Government’s consultation:

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.

I am well aware that many right hon. and hon. Friends are desperate to speak to the group of amendments on social welfare, so I will finish my remarks there.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 8:45 pm, 31st October 2011

May I say what an enormous pleasure it is to follow Karl Turner and to commend at least some of his comments to my colleagues, particularly to those seeking the promotion of my hon. and learned Friend Mr Cox? I make no comment about any other Queen’s counsel on this side of the House.

There is undoubtedly a fundamental problem with civil legal aid. The simple fact is that to bring cases for which legal aid is available to trial in this country costs more not only than it does in civil law systems that do not recognise the extensive discovery that we have here in England and Wales and in other jurisdictions of the United Kingdom, but more than it costs in other common law jurisdictions such as New Zealand and Australia and in other jurisdictions that have essentially inherited our legal system. That fundamental problem is one with which, because of the deficit we were left by the last Government, this Government have had to grapple. [Interruption.] I can see Mr Slaughter mouthing something from a sedentary position. If he wants to intervene, I am happy to allow him.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I felt that the hon. Gentleman was about to get into a long peroration that would be more suitable for a Second Reading debate. I was simply reminding him that the amendments we are debating are about clinical negligence.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I am grateful, but I see Mr Deputy Speaker in the Chair this evening. I am sure that if I am out of order at any stage, he will upbraid me. I do not need any lessons from the hon. Member for Hammersmith about how to speak in this Chamber or indeed about the remarks I intend to make tonight. [Interruption.] The simple fact of the matter is—[Interruption.]

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I am extremely grateful, Mr Deputy Speaker. The simple fact is that these amendments, which seek to reverse the Government’s position that clinical negligence should be removed from the scope of the exceptions in the Bill, have to be considered against the background of the current position as it prevails in relation to civil legal aid. If that point has escaped the hon. Member for Hammersmith, it is not one that has escaped me or, indeed, my hon. Friends. I remind him that it was the manifesto commitment of his party that Labour would have reformed the civil legal aid system if they had formed the next Government.

In those circumstances, we come to the particular context of these amendments and of whether it is appropriate to remove clinical negligence from the scope of legal aid and leave the gap to be picked up in two ways. I am sure that the Minister will make it clear in his concluding remarks how that gap will be picked up. At this juncture, I should say incidentally to the hon. Member for Kingston upon Hull East that I have made no representations at all to the Minister about this Bill, although I was grateful for the hon. Gentleman’s earlier observations. The Government believe that that gap will be filled in two ways. First, the exceptional funding that the Bill makes available will pick up many clinical negligence cases that would otherwise have attracted legal aid funding from the Legal Aid Board. That may satisfy some, and it may deal with part of the problem.

I realise that there are extremely strong feelings about the issue, not just among Opposition Members but on the Government Benches, but the cost of legal aid is an issue with which the Government must grapple. The hon. Member for Hammersmith made it clear on Second Reading that the Opposition would make cuts in a different area, but he did not tell us where they would be made. I might add that the same applies to every other policy that we hear about from Opposition Members, and to every other instance of opposition. The simple fact is that cuts must be made somewhere, and I believe that clinical negligence is one area in which it is appropriate to make them.

The other way in which the gap that will be left by the removal of legal aid can be filled and access to justice ensured for the vast majority of claimants who have sustained, or at least allege that they have sustained, clinical negligence and have suffered injury as a result, is through the conditional fee arrangement. That too was mentioned by the hon. Member for Kingston upon Hull East, who made the important and correct observation that the CFA system had been introduced by the last Government to pick up cases in which legal aid was not available. I must say, with the greatest respect to him—and I have enormous respect for him, as a fellow member of the Bar—that that observation undermines the entirety of his argument.

We can all, as the hon. Gentleman did, draw attention to emotive cases. None of us believes that those who sustain serious injury as a result of clinical negligence should not have an opportunity to seek redress from the courts as a result of these proposals or indeed any others. People have a basic right to seek access to justice. My judgment tells me, however, that the arrangements proposed by the Government have not just the two salutary features that I have identified, but a third benefit: they begin to deal with the spiralling costs of a legal aid system that has been out of control for far too long.

Why does civil justice cost so much in this country? We have a tradition of getting to the truth and, indeed, a desire to do so, and it costs money to get to the objective truth. Having never practised in the area of clinical negligence myself, I was troubled and surprised to hear Mr Llwyd refer to occasions on which the big beast of the national health service had effectively ensured an inequality of arms between it and those who alleged that they had sustained clinical negligence by failing to produce the documents and other evidence for which the civil procedure rules undoubtedly call. Although he did not give examples, I do not for a moment doubt his bona fides, or that he was referring to cases of which he had heard. However, if that is the case, providing legal aid for all clinical negligence cases is not the answer. I believe that the answer, which is relevant to his amendments, is twofold.

The first way of dealing with that issue, to the extent to which it exists, is to ensure that the civil procedure rules in England and Wales, and whatever rules exist in Scotland and Northern Ireland, are amended to make absolutely clear that early discovery or disclosure, call it what you will—oral and, if necessary, documentary—is afforded to claimants, so that they have access to the materials that they need to submit to their medical experts. If those rules are not currently in place, my right hon. and learned Friend the Lord Chancellor, who is no longer in his place, will need to consider with the Civil Procedure Rule Committee precisely what changes to the rules ought to be made to redress that inequality of arms. In my respectful judgment, ensuring the continued existence of civil legal aid in an area in which the Government have indicated they intend to remove it, albeit with exceptional measures remaining, is not the answer.

The second way in which the problem ought to be addressed is by the judiciary being much stronger with, and more critical of, public authorities when they seek to suppress information that is relevant to cases that come before the court or that is necessary to enable claimants to prepare their case properly. It must ensure that there is equality of arms and that people can best advance their case in the courts should matters need to proceed that far.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs) 9:00 pm, 31st October 2011

The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I am grateful to the right hon. Gentleman for his observations, but I venture to suggest that he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.

Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.

Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.

I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

With the leave of the House, I was about to make my final few remarks.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee

I apologise to my hon. and learned Friend; I thought he had concluded his speech.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

The amendment proposed by my right hon. Friend Tom Brake addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.

Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

My hon. and learned Friend highlighted a flaw in the drafting of the amendment, but in his contribution this evening he has identified the group of cases that gives me some concern: the group of middle cases, as he described them. He has, I think, suggested both that he also has concerns in this regard and that the Government may need to address the matter in future.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

Well, it may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.

I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee

I apologise to my hon. and learned Friend Stephen Phillips for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.

I commend the members of my Committee who have brought this issue to the attention of the House: Mr Llwyd and Karl Turner. The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.

That brings me to the issue raised by my hon. and learned Friend: there may be a group of cases that are not satisfactorily embraced by the Government’s exceptional provisions, which it is estimated will cost £6 million of the £16 million currently spent and which I hope will pick up some of most serious cases, but that will be dealt with by the conditional fee arrangement system. That has to be viewed against the background of the Jackson proposals, and I hope that the Minister will say something about the concern that after-the-event insurance may be too costly to be undertaken when it is needed to gain expert reports. Another concern is that there may not even be an effective market in this type of insurance for such a limited range of cases and therefore one aspect of what is left for that middle group of cases may not prove to be available in practice.

The group of people I am most concerned about are those whose injuries will last a lifetime. The right hon. Member for Dwyfor Meirionnydd mentioned birth injuries, and I am particularly concerned about parents who need to ensure that care is provided beyond their lifetimes to their children. Many of us have dealt with elderly parents who have had worries of this kind for children with brain injuries. Members of this House and those in the other place need to be assured that this combination of measures—the willingness of solicitors and counsel to undertake cases as an appreciation of their significance and the public good, the availability of the Government’s exceptional provisions for some types of serious case and what remains of the CFA system—will between them cater for some of these very serious cases. This House and the other place will need to be given some assurance, otherwise I strongly suspect that when the Bill comes back to us it will have been significantly amended.

Photo of Guy Opperman Guy Opperman Conservative, Hexham 9:15 pm, 31st October 2011

I think I am unique in this House in that I have had a great deal of experience in the area of clinical negligence and have practised for the best part of 12 years almost exclusively on behalf of claimants. I have conducted well over 100 clinical negligence cases, against a multitude of general practitioners, hospital trusts and the like. They were primarily insurance-backed or conditional fee arrangement cases, although some of them were occasionally legal aid cases. I believe that, in the great tradition of the Government, I have still been unpaid for some of that work, notwithstanding the fact that I have not completed any work as a lawyer since I was elected in May 2010. So I should declare an interest in that I believe I have some legal aid fees outstanding, not that I am pressuring the Minister in any way to beat a path to my clerks and my chambers to pay the bill.

I should also declare an interest as a former lecturer and a member of Action against Medical Accidents—AvMA. I have written extensively on this area and am a member of the Association of Personal Injury Lawyers. I have given instructions to a multitude of different hospitals up and down the country, assisting them on how they can avoid clinical negligence claims. I was retained as counsel for several hospital and trust institutions, advising on how to avoid these claims and how to move forward. I should also declare an interest in that I am part of the team pushing for a culture of openness and have met the hon. Member who so very helpfully saved my life in May, my hon. Friend Dr Poulter. So I have also conducted an in-depth study of the NHS over the past six months in a way that I did not expect when I was first elected.

My final declaration is that I have great respect for Mr Llwyd, who occupies part of a seat that I fought in 2005 of the Lleyn valley and peninsular in what was Caernarfon. I know that he is an outstanding MP and barrister and I have great respect for the points that he makes, as I do for the submissions and proposals of Tom Brake and Karl Turner.

Let me address the submissions and proposals of the right hon. Member for Dwyfor Meirionnydd regarding the duty to come clean. It must surely be the case that NHS authorities should come clean at an early stage and I endorse some of the comments that were made about this being something to be addressed not so much in the Bill as in the NHS’s culture and approach. I regret to say that I disagree with my hon. and learned Friend Stephen Phillips about this, and I have a copy of an article that I wrote for an Association of Personal Injury Lawyers publication on this exact point. In my experience there is ample evidence of isolated examples of an NHS trust deliberately defending a claim on an ongoing basis in the hope that the relevant individual goes away. That is a serious allegation to make, but it is not just me who says it—cases have been reported. I recommend very highly the amazingly well-written edition of APIL PI Focus, volume 20, issue 3, which I co-authored, which addresses that particular point.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I make it clear for the fourth time that I have no experience in this area, and I have no doubt that such cases exist, but are they not exactly the sort of case that the civil procedure rules were introduced to deal with? Judges have powers to ensure equality of arms and if defendants behave badly they ought to be punished accordingly.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I totally endorse that point and such defendants are punished accordingly, particularly in the punitive elements of costs when they are assessed. There are punitive factors that my hon. and learned Friend as a judge would know one is able to impose in a civil court whereby—[ Interruption. ] I accept that he is not a civil judge—it shows. There is an ability to punish the offending NHS institution or doctor, but the fair point that has been raised and must be addressed is that the powers that would exist to a civil judge, were my hon. and learned Friend to be one, would arise quite far down the track in civil litigation and not at the outset. I come back to the legitimate and fair point that we should address this issue to NHS trusts and particularly to two types of individual, including, first, to chief executives. Regrettably, there are examples of a failure of leadership by chief executives because, clearly, they are mindful of their budgets and they do not like the idea of a culture of openness in which mistakes are admitted. In those circumstances, whether implicitly or directly, efforts are made to suppress litigation against NHS trusts.

The second group of individuals who should be involved is doctors and consultants. Because theirs is such a hierarchical profession, instead of having a culture of openness in which mistakes are readily admitted, there is, sadly, from time to time—I have professional experience of this—a failure to admit mistakes. As the hon. Member for Kingston upon Hull East will sadly and tragically have discovered—and I have been involved in several such meetings—there is a post-operative debrief within the health service.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

This is not really my field, but I know from my constituents that a large number of them who have experienced difficulties in the NHS are extraordinarily concerned about the lack of transparency and the weight of expertise against them, because they are not, of course, particularly skilled in that area. Does my hon. Friend agree that that is one of the big problems we need to address, as I hope we are doing in the Bill?

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I am grateful to my hon. Friend for his intervention, but I will not deal with it in any great detail—I mean no disrespect to him—because I wish to go back to the point I was making. We must have a system within the medical profession that allows its members to start to accept that it is perfectly understandable that mistakes are made, because they are human beings, and that there is insurance to cover such matters when they take place. With the best will in the world, that should be accepted. That recognition, however, does not exist to the degree that it should.

Photo of Richard Harrington Richard Harrington Conservative, Watford

Does my hon. Friend think that that phenomenon is unique to the medical profession? Does it apply to many other professions, including his former profession, the legal profession, where mistakes are not openly broadcast and are dealt with internally, often unofficially, rather than publicly?

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I did not expect to be attacked by my own side for my former profession. I agree that we all need to accept that when we make mistakes we should own up to them, and that goes for politicians, too.

In fairness, I should speak to the amendments. Surely the point is that there should be a statutory duty of candour in the health service, and that is what is missing. If it needs any encouragement, I know of three separate reports that deal with it: the Levinson and Gallagher report, “Disclosing Harmful Medical Errors to Patients”; the Robins report in the Law Society Gazette; and “Why do patients complain?”, from the Association of Personal Injury Lawyers. All three reports, and reports from across the world—there is good evidence in Australia and New Zealand—show that where there is openness and admission of blame, the amount of litigation subsequently goes down, rather than up. For nine out of every 10 clients I saw as a professional barrister practising on clinical negligence, the first two questions they asked were: “Why did they not apologise?”; and “What will be done to ensure that it does not happen to anyone else?” Nine out of 10 clients would fully understand that no doctor gets up in the morning and makes a mistake deliberately. They understand that it is because they are making clinical errors under intense pressure. In that respect, those are the things that need to be addressed by the Health Secretary, rather than in the Bill.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I will, but for the last time.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Does my hon. Friend agree that the difference between mistakes made by his profession, which is also my profession—I speak to him with sympathy—and those made by the medical profession is that in the case of the latter the consequences can be truly tragic and cannot be put right? Therefore, there must be some mechanism that is open, understandable and available to the public as a whole to try to help when something goes tragically wrong and affects a person’s life.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

With respect, there are ways forward on those issues, not least the idea of a joint report to be completed by a defendant and the claimant together. It would be easy for the Health Secretary to address that by ordering the individual chief executives, particularly in relation to cerebral palsy cases, to provide an independent expert’s report assessing the particular birth. If that happened, litigation would go down, as would the funding to the taxpayer, and we would have speedier and better resolution of these issues. I regret to say that those sorts of things have been said by a number of Members in both Houses in the past and no one has addressed it. However, I stress that that is a matter for the Health Secretary, rather than one that arises out of the Bill.

I am conscious of the time and want to address the other points that have been made; I apologise that I did not do this on Second Reading, but clearly I could not be present in the House at the time. I accept entirely the points made by the hon. Member for Kingston upon Hull East about the fear of the loss of legal aid, and I will address individual children’s cases, in particular, in a moment. The fear of the loss of legal aid is not something that is new to the legal profession, or in relation to negligence or the practice of personal injury law. Those same issues arose throughout the 1990s and 2000 in relation to the Woolf reforms, and many of us who were practising barristers at the time were concerned that individual litigants would be unable to go to the personal injury courts or elsewhere and bring litigation. With no disrespect to the submissions made, the matter has not been resolved, and on this particular issue conditional fee agreements have without question filled the gap. They have been extremely successful—some, including certain Ministers, would say almost too successful—at filling the gap where legal aid previously existed.

I could go so far as to say that there is a distinct possibility that legal aid is much harder to apply for and—in relation to funding, as a claimant’s lawyer and as a claimant—to sustain long-term than a conditional fee agreement, because the individual solicitor who takes on a conditional fee agreement effectively backs the case, whereas taxpayers, in the form of the Legal Services Commission, which supports legal aid cases, are understandably shy about spending their money. In the cases that I took to the European Court arising out of medical matters, it was incredibly difficult for us to deal with them and to get funding through the Legal Aid Board.

I suspect—I cannot prove it at this particular stage, but I suspect—that in an appropriate case the conditional fee arrangement will be much better funded and supported than legal aid. I would be a cynic to say that the NHS Litigation Authority wants legal aid to continue, but it is very much proven that CFA-funded cases against the national health service are normally much more successful than legal aid-funded ones. The situation is difficult in children’s cases, and I will address that in a second, but legal aid funding is not a panacea.

On the submissions of Tom Brake, I agree entirely with my hon. and learned Friend, who said that the amendments seemed to be probing amendments, which will not be put to the House, on an esoteric EU matter that may not necessarily occur in any event.

Finally, there is common ground on both sides of the House about the problem of the middle ground for complex cases concerning children. The issue will clearly be debated in another place, and further advice will be given for and against it, but in broad terms I ask the Minister to consider this specific point: whether children’s—

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons 9:30 pm, 31st October 2011

Order. I am not absolutely sure in my mind, so the hon. Gentleman might wish to indicate, whether he was intending to allow Mr Buckland to have a brief opportunity to speak. I do not know whether he was intending it, but if he is I am sure he will be approaching the conclusion of his remarks.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I am grateful for the advice and assistance, Mr Speaker, and I will conclude in approximately one and a half minutes—

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I am most grateful to the hon. Gentleman for that observation—from his usual sedentary position. If he had taken more exercise, he could have stood up to say it.

In broad terms, will complex cases concerning children be subject to exceptional funding? That is the first point that the Minister needs to address.

The second point that I ask the Minister to take away with him is whether, in a complex child case and, particularly, in cerebral palsy cases, a joint or an independent report could not be commissioned, so that there is an assessment at that stage of whether there is a case to answer. If there is a case to answer, the obtaining of legal aid would clearly follow thereafter; if there is not, the matter would not proceed.

On that quiet note, and with apologies to the sedentary hon. Member for Ealing North (Stephen Pound), I resume my seat.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I pay tribute to Karl Turner, who speaks from professional and personal experience on these matters. I am profoundly grateful to him for his candour and passion. I am also grateful to Mr Llwyd, a fellow practitioner from Wales, who has considerable experience of these matters.

I rise to reinforce some of the points that have been made about some aspects of the proposed reforms. I am sure that my hon. Friend the Minister will accept that it is difficult to define an exceptional case. By the very nature of the category that the Legal Services Commission uses to deal with exceptional cases, they are indefinable. I accept that he will therefore find it difficult to assure us categorically that all cases that cause proper concern—particularly the complex cases involving young children who have had difficulties at birth—will be covered by the Government’s proposals.

We are right to raise these concerns. Clinical negligence cases are somewhat unusual in that the expenditure is incurred at the beginning. The firms of solicitors dealing with such cases are often not the big firms that live in the City of London, but the firms of partners who have developed a degree of experience in such cases and who understand how to relate to the families of people who have suffered from alleged clinical negligence. However, such firms do not necessarily have the resources to enable them to spend lots of money on the preliminary medical investigations that are essential in preparing the ground in such cases. I support the remarks made by my hon. Friend Guy Opperman, who, in his excellent speech, raised the possibility of producing a joint report, at the beginning of each case, for the NHS—the defendant—and the claimant. That is a good point to make, but we are not in that position yet; we are still in an adversarial position. My deep worry is that a lot of cases will go without the necessary representation or help because those firms do not have the resources to dip into their pockets and to pay the thousands of pounds that are needed to prepare a case for making a claim.

I speak from experience, having served as a member of a funding review panel for some 10 years, and having dealt with appeals made by solicitors against the refusal or revocation of legal aid certificates in cases of clinical negligence. It would be wrong to say that a carte blanche exists at the moment. Even now, it is not easy for solicitors to satisfy the Legal Services Commission. I want to ask the Government to think carefully about the observations made by Members on both sides of the House, and to hesitate before seeking to implement the full thrust of these proposals.

There are several ways of dealing with this question. The first would be the full retention of legal aid for such cases. Another would be its retention for those aged 18 or under who are making claims against the NHS for clinical negligence. A further option would be to allow the provision of legal funding for initial advice and assistance in the preparation of reports before the commencement of any proceedings. Such an option would not cover representation, but it would deal with the preliminary stages. I ask the Government to consider those alternatives very carefully. I know that this matter will be hotly debated in another place, where I am sure that full account will be taken not only of what we have said here tonight but of any observations that are made there.

D

Robert Buckland said, "...raised the possibility of producing a joint report, at the beginning of each case, for the NHS— the defendant— and the claimant. That is a good point to make, but we are not in that position yet; we are still in an adversarial position."

There has been a recent extra-judicial speech by Lord Neuberger where he explains that the Woolf reforms, with respect to expert witnesses, have made parts of the litigation process more inquisitorial at the expense of being adversarial.

See speech 5th October 2011 (pdf, 8 pages).

In other words, if there is a necessity for expert opinion, the duty of the expert is to the Court; rather than to the party who has engaged him. This is an inquisitorial, rather than adversarial, position.

Submitted by Darren Rhodes

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Let me first set out the scope of what we are talking about. Clinical negligence spend through legal aid in 2009-10 was about £17 million, consisting of around £1 million for legal help and around £16 million for representation. Closed-case volumes for legal representation in clinical negligence in 2009-10 were just over 2,300. It is estimated that removing clinical negligence from scope will save around £17 million per annum on legal help and representation, taking account of the exceptional funding regime and the estimated income from the supplementary legal aid scheme. Continued spend of £6 million through exceptional funding of the £16 million currently spent on representation in clinical negligence is foreseen. NHS figures for 2010-11 show that 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current situation.

The NHS Litigation Authority figures for 2010-11 show that of 2,002 legally aided claims, some 718 were claims for children, which represented 36% of claims funded through legal aid. Annex B of the Government’s impact assessment on the reforms to conditional fee agreements sets out estimated savings of £50 million to the NHS Litigation Authority as a result of abolishing recoverability of success fees, and after-the-event insurance premiums.

Photo of Amber Rudd Amber Rudd Conservative, Hastings and Rye

On the impact assessment, have the Government assessed how many children who would previously have qualified for clinical negligence aid will no longer qualify when the changes go through?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

That is a hard to say, because it depends on the extent to which children will come within the scope of exceptional funding, but we believe that the figure for exceptional funding will be £6 million, and that a significant proportion of that would be related to children’s claims. I will return to that.

The figure does not account for the NHS Litigation Authority paying after-the-event insurance premiums for policies covering the cost of expert reports in some cases. My hon. and learned Friend Stephen Phillips made that point very well. Based on figures published by the compensation recovery unit on claims settled, clinical negligence cases made up just over 1% of personal injury claims in 2010-11.

While Opposition Members were speaking, a thought came to my mind. Clinical negligence forms about 1% of the wider personal injury market. The last Government ended legal aid for personal injury claims, except in relation to clinical negligence. I am looking for help from Opposition Members because it is bizarre to hear them defend their position with such vehemence and conviction when their party scrapped 99% of this category. Let me develop the point.

Labour Members seem to be saying that if a drunk driver hit someone and caused brain damage, the injured person would not get legal aid. But if the same victim were brain-damaged to the same extent by a negligent doctor, they seem to be saying that that person should get legal aid—[ Interruption. ] If I have missed something, I am all ears. Karl Turner may want to explain why I am wrong. The Opposition must find some consistency in their position.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The injured person could make a claim, but so could the person who suffered clinical negligence. The point is, as the hon. Gentleman knows, that the position is inconsistent.

We recognise that many clinical negligence cases involve serious issues, but for most a conditional fee agreement will be a suitable alternative to public funding. According to NHS figures for 2010-11, 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current position. We therefore consider that legal aid is not justified in such cases, and that our limited funding would be better targeted at other priority areas, such as those involving physical safety, liberty and homelessness. However, we have proposed an exceptional funding scheme to ensure that some individual clinical negligence cases will continue to receive legal aid when failure to do so would be likely to result in a breach of the individual’s right to legal aid under the Human Rights Act 1998 or European Union law.

In considering whether exceptional funding should be granted, we will take into account the client’s ability to present their own case, the complexity of the matter, the importance of the issues at stake, and all other relevant circumstances. As I said to my hon. Friend Amber Rudd, our impact assessment estimates that we will continue to spend some £6 million of the £16 million that we currently spend on representation in clinical negligence cases.

Photo of Sarah Newton Sarah Newton Conservative, Truro and Falmouth 9:45 pm, 31st October 2011

I understand the point that my hon. Friend is trying to make, but there is still great concern among my hon. Friends about what help will be available for vulnerable young children who have experienced harm as a result of medical negligence. Can he help us to understand that?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

As I have said before, we estimate that the vast majority of the £6 million will be for complex and lengthy cases which concern cerebral palsy, brain-damaged children or adult paralysis. We believe that no-win conditional fee agreements will still be available to fund these claims in the new regime. In addition, our reforms provide for a power allowing recoverability of after-the-event premiums in clinical negligence claims to help cover the cost of expert reports in complex clinical negligence cases. We have also announced plans to implement qualified one-way cost shifting in clinical negligence cases, which would mean that claimants would not be at risk of paying their opponents’ costs, as is the case with legal aid. Where CFAs are not available, the exceptional funding scheme will allow funding to be granted in individual excluded cases where the failure to provide funding would be likely to result in a breach of the individual’s human rights.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

CFAs are awarded in circumstances where the parents will be in a state of considerable grief, or at least have a huge amount of concern, about the well-being of their child, so will there be a sensitive enough arrangement for making the awards and assessing the circumstances?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

Indeed. As is currently the case, the solicitors awarding the CFA would have to look at the merits and take a decision as to whether they wanted to proceed with it. Obviously, the person has to want to instruct the solicitor and the solicitor has to want to take the case; it would cut both ways.

There have been a lot of comments about what assessment has been made of the effects on the NHS of removing clinical negligence from the scope of legal aid. In response to a parliamentary question, the Department of Health indicated that

“the potential effect on the national health service of removing clinical negligence from the scope of Legal Aid will be cost neutral.”—[Hansard, 14 September 2011; Vol. 532, c. 1231W.]

In annex B of the impact assessment on the reforms, we estimate savings of £50 million to the NHS Litigation Authority as a result of the abolition. My officials are in ongoing consultations and discussions with the NHSLA and stakeholders about how the commissioning of expert reports can be improved so that, for instance, joint reports can be commissioned wherever possible. This, in turn, would help to encourage early notification of claims.

One particular aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert reports. Following consultation, the Government are seeking a tightly drawn power in the Bill to allow the recoverability of after-the-event insurance premiums in clinical negligence cases. The details will be set out in regulations. My hon. Friend Guy Opperman, who lent us the benefit of his considerable experience in the clinical negligence field, made some important points in this regard.

We have to make some difficult choices about legal aid, and we need to focus our limited resources on those who need it most.

Photo of Claire Perry Claire Perry Conservative, Devizes

Will the Minister clarify whether eligibility will be income based or based on the child’s condition, vulnerability or need?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

My hon. Friend’s point goes back to children and their eligibility on the basis of income. A certificate is issued in the name of the minor or the patient and it is their resources that are assessed in the normal way, not those of the litigation friend, children’s guardian or guardian ad litem who is bringing or defending the proceedings on their behalf.

However, in family cases where the applicant for funding is a child, the resources of a parent, guardian or any other person who is responsible for maintaining him or her, or who usually contributes substantially to his or her maintenance, are required to be treated as his or her resources unless, having regard to all the circumstances, including the age and resources of the child and any conflict of interest, it appears inequitable to do so. The applying solicitor should submit appropriate means forms for the child and parents or others responsible for or contributing to his or her maintenance or, more usually in the first instance, explain in the application itself why non-aggregation of means would be appropriate in the circumstances of the particular case, having regard to the position of each of the parents or others on the issues in the case and the party status of the child.

Where children have sufficient understanding to decide that they want to seek an order in family proceedings for themselves and actually start proceedings, there may be no conflict with one or both parents and it may be reasonable to take the means of the parents, or one of them, into account. However, where a child is joined as a party in ongoing proceedings by an order of the court, the assessing officer is likely to accept that the party status of the child justifies non-aggregation.

I hope that that answers my hon. Friend’s point.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

On the tricky issue of cerebral palsy among children, would the Minister consider persuading NHS trusts in all such cases, of which there are not many, to commission an independent report as a first step, before any application for legal aid is made?

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

My response to that applies more broadly than to just cerebral palsy. We believe that the NHS Litigation Authority should more frequently take the initiative in the preparation of reports. Where possible, there should be joint reports, not least to help cases along more swiftly.

Our approach means that public funding will not be available for each and every claim involving a public authority, but it will be available for the most serious cases and to address serious abuses. Most claims for damages will be removed from the scope of legal aid because we have sought to focus our limited resources on cases where the client’s life, liberty, physical safety or home is at risk. Therefore, we do not consider that most claims seeking financial compensation from public authorities merit public funding. However, the Bill ensures that legal aid is available for the most serious damages claims that concern an abuse of position or power, or a significant breach of human rights by a public authority.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

That is the third time that my hon. Friend has referred to human rights. It is as if he was deliberately rubbing salt into the wounds. Members would prefer it, certainly those on the Conservative Benches, if money was available for medical negligence cases, rather than for human rights cases.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I am referring to human rights mainly in relation to exceptional cases where the money would indeed go towards satisfying someone’s medical negligence claim.

Other claims will be excluded from scope and alternative sources of funding, such as conditional fee arrangements, may be available for meritorious claims. I confirm for my right hon. Friend Tom Brake that we always have an open mind on these issues. I am happy to engage with him as the Bill progresses.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

It is good to hear the Minister talking about possible future concessions in this area. To be fair to him, he has always said that the Government’s aim is to protect the most vulnerable. How does he square that with the fact that he has orchestrated the talking out of the main group of amendments today, which affects many of the lowest-income and most vulnerable people in this country? Why are we not getting on to talking about other areas of social welfare law? Is it to protect

Mr Buckland, whose law centre is losing all its funding? Is it to protect the Minister’s coalition allies from withdrawing—

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I say to the hon. Gentleman that I have enjoyed listening to my hon. Friends and to some of his hon. Friends this evening, in what has been a very informed debate. We have heard some expert contributions, not least from my hon. Friend the Member for Hexham, who started by saying that he had acted in 100 clinical negligence cases. I do not think that there has been any time wasting at all—not nearly as much time wasting as when the hon. Gentleman held a three-hour debate on the first group of amendments on the first day in Committee.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

We spent the first 10 minutes of this debate talking about the Minister’s declaration of interests, which was very substantially overdue. All I would say to him, as a last contribution, is that many people will be watching this debate tonight, particularly in another place. They will draw their own conclusions from his unwillingness to debate those issues.

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

I hope those many people will be as unimpressed as I am by what the hon. Gentleman just said.

Let me address the interaction of legal aid and the Jackson proposals, which was mentioned by three or four hon. Members. In addition to reforming legal aid, the Government are introducing fundamental reform of no win, no fee conditional fee agreements, as recommended by Lord Justice Jackson. During the consultation on his recommendations, concerns were raised about the funding of expert reports in clinical negligence cases. Those reports can be expensive and we need to provide a means of funding them to ensure that meritorious claims can be brought by those who cannot readily afford to pay for them up front. That is why, in making changes to the CFA regime, we are making special arrangements for the funding of expert reports in clinical negligence claims.

The hon. Member for Kingston upon Hull East suggested that victims of clinical negligence who take their cases on CFAs will lose their damages in legal fees. As recommended by Lord Justice Jackson, we are reforming CFAs because of the high costs introduced by changes that were made by the previous Government in relation to the recoverability of success fees and after-the-event insurance. Lord Justice Jackson recommended that there should be a cap on damages in personal injury cases that can be taken in lawyer success fees—the cap should be 25% of the damages, not including damages for future care and loss. The Government have accepted that recommendation, so that victims of personal injury, including from clinical negligence, will have their damages protected under CFAs.

The Civil Justice Council is looking at some of the technical aspects of implementing the Jackson recommendations. I spoke with it on this issue only this morning, when I also attended a conference on issues such as how the 25% cap will work to protect damages.

The hon. Gentleman said that the proposal would be fairer if the Government were not introducing the Jackson reforms, and asked why we were implementing both at the same time. We are considering all those major changes together and in the round. At the same time as seeking to make savings from the legal aid budget, we are taking forward those priority measures that were recommended by Lord Justice Jackson, to address the disproportionate and unaffordable cost of civil litigation. It is essential that those proposals are considered at the same time. The current CFA regime, with its recoverable costs, causes a significant burden on, for example, the NHS. Withdrawing legal aid for clinical negligence without reforming CFAs could increase that burden significantly.

The hon. Gentleman said that claimants in severe injury cases are more likely to be disabled and frail and so forth, and being unable to bring proceedings—[ Interruption. ]

Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice

The hon. Member for Kingston upon Hull East asked how such cases can be excluded from scope. We consider that CFAs are a viable alternative source of funding to legal aid. CFAs are more readily available in clinical negligence cases than in cases for other types of claim that are currently funded under legal aid. We therefore consider that legal aid is not justified in such cases, and that our limited funding will be better targeted at other priority areas.

It was also said that such claims are not just money claims, and that damages ensure quality of life for the claimant for the remainder of their lives, and hon. Members asked how it can therefore be right to exclude them. Legal aid is currently available to those who qualify financially and who have suffered negligent medical treatment to seek damages from any type of public or private medical practitioners. Although those are claims for monetary compensation, we consider that they often raise very serious issues, especially when the damages are required to meet future needs. Some litigants will be vulnerable because of disabilities that result from negligent treatment.

We were then asked how the Government could expect CFAs to make up the shortfall, given that they would not be available in a large number of cases, such as those involving long-term impairment. Our legal aid proposals would ensure that particular cases in which it might be difficult to secure a CFA continue to receive legal aid where the failure to provide such funding was likely to result in a breach of the individual’s rights.

Debate interrupted (Programme Order, this day).

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Speaker put forthwith the Question s necessary for the disposal of the business to be concluded at that time ( Standing Order No. 83E) .

Amendment made: 11, page 99, line 36, at end insert—

‘“personal representative”, in relation to an individual who has died, means—

(a) a person responsible for administering the individual’s estate under the law of England and Wales, Scotland or Northern Ireland, or(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the individual’s estate;’.—

(Mr Djanogly.)

Amendment proposed: 92, page 103, line 35, leave out ‘physical or mental abuse’ and insert ‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.—(Mr Llwyd.)

Question put, That the amendment be made.

The House divided:

Ayes 237, Noes 305.

Division number 380 Legal Aid, Sentencing and Punishment of Offenders Bill — Definition of Domestic Abuse Used In Relation to Eligibility for Civil Legal Aid

A majority of MPs voted against explicitly including threats plus financial and emotional abuse in the definition of domestic abuse used in relation to the award of civil legal aid to domestic abuse victims.

Aye: 237 MPs

No: 304 MPs